815 F2d 704 Maxberry v. McDonald's Corp

815 F.2d 704

Dennis Lee MAXBERRY, Plaintiff-Appellant,
v.
MCDONALD'S CORP.; HARDEE'S CORP., Defendants-Appellees.

No. 87-3020.

United States Court of Appeals, Sixth Circuit.

March 26, 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

ORDER

Before: ENGEL and GUY, Circuit Judges; and PECK, Senior Circuit Judge.


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1

Appellant has responded to this court's order to show cause why this appeal should not be dismissed as untimely filed.

2

On September 15, 1986, the district court entered judgment dismissing appellant's complaint against the appellees. On September 22, 1986, appellant served a "petition for review" which may be construed as a motion to alter or amend the judgment under Rule 56(e), Federal Rules of Civil Procedure. As such, the motion tolls the time for filing a notice of appeal until the motion is decided. On September 29, 1986, the district court entered an order which denied the "petition" for review. The notice of appeal was due October 29, 1986. Rule 4(a)(5), Federal Rules of Appellate Procedure. Appellant did not file a notice of appeal until December 30, 1986--two months late.

3

Compliance with Rule 4(a), Federal Rules of Appellate Procedure, is a mandatory and jurisdiction requirement which this Court can neither waive nor extend. Peake v. First Nat'l Bank, 717 F.2d 1016 (6th Cir.1983). Accordingly, this appeal is dismissed. Rule 9(b)(1), Rules of the Sixth Circuit.