815 F2d 702 Butler v. Tate Hw Lt

815 F.2d 702

Edward R. BUTLER, Plaintiff-Appellant,
Arthur TATE, Supt., Jeff Mathew, Admin. Asst., H.W. Jenkins,
Assoc. Supt. (Operation), Stephen Dix, Assoc.
Supt., (Reception) L.T. Bond, Sgt. Mail
Room (Supervisor), Defendants-Appellees.

No. 86-4060.

United States Court of Appeals, Sixth Circuit.

March 13, 1987.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before ENGEL, KRUPANSKY and GUY, Circuit Judges.


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Appellees move to dismiss this appeal as untimely filed. Appellant has not responded thereto.


On July 28, 1986, the district court entered judgment dismissing appellant's civil rights action. On August 7, 1986, appellant filed a motion for reconsideration of the July 28, 1986, dismissal. The certificate of service on the motion for reconsideration establishes that it timely was served on August 4, 1986, but the parties who were served are unidentified. The record is void of any indication that the appellees were actually served with the motion for reconsideration. Consequently, the motion for reconsideration was not properly served within the meaning of Rule 59(e), Federal Rules of Civil Procedure, and Rule 4(a), Federal Rules of Appellate Procedure, and therefore the motion for reconsideration did not toll the time for filing the notice of appeal.


According to Rule 4(a), a notice of appeal must be filed within 30 days of the judgment from which the appeal is taken. because the motion to reconsider did not toll the time for filing the notice of appeal, the filing of the notice of appeal on November 17, 1986, was two and one-half months late.


Compliance with Rule 4(a), Federal Rules of Appellate Procedure, is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Peake v. First Nat'l Bank, 717 F.2d 1016 (6th Cir.1983). Because the notice of appeal was filed late, this Court is deprived of jurisdiction.


This appeal is dismissed. Rule 9(b)(1), Rules of the Sixth Circuit.