940 F2d 664 Warner Jb v. McLean Trucking Company
940 F.2d 664
137 L.R.R.M. (BNA) 3000
David K. WARNER, Gary W. Day, Robert Hulshult, Jeremy
Bender, Wayne Harness, Douglas Lawson, Henry Tucker, John
Joplin, George McGinnis, Elmer Jones, J.B. Ferguson, Michael
Hardesty, Lawrence Murphy, Jimmie Phelps, on behalf of
themselves and all members of the certified class,
Plaintiffs-Appellants,
v.
McLEAN TRUCKING COMPANY, Ohio Conference of Teamsters, Ohio
Joint State Committee, Local 100, International Brotherhood
of Teamsters, Chauffeurs, Warehousmen Helpers of America,
Ohio Highway Drivers' Council, Defendants-Appellees.
No. 91-3273.
United States Court of Appeals, Sixth Circuit.
July 24, 1991.
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 BOGGS, Circuit Judge, LIVELY, Senior Circuit Judge, and CLELAND, District Judge*.
ORDER
The plaintiffs appeal summary judgment for the defendants in this action for breach of contract and the duty of fair representation. The district court entered its judgment on January 30, 1991. Pursuant to Fed.R.App.P. 4(a)(1), the notice of appeal was to have been filed within 30 days, i.e. by March 1, 1991. The notice of appeal was not filed until March 4, 1991. An order to show cause why the appeal should not be dismissed as untimely was entered by this court on March 26, 1991. The plaintiffs responded that they were seeking an extension of time from the district court and asked that the matter be placed in abeyance until the district court ruled.
On April 17, 1991, the district court denied the motion to extend. Within ten days the plaintiffs filed a motion to reconsider, which was also denied by the district court on June 2, 1991. The defendants have now filed a motion to dismiss the appeal on grounds of untimeliness. The plaintiffs have filed no response.
A timely notice of appeal is a mandatory and jurisdictional prerequisite which this court cannot waive. Budinich v. Becton Dickinson and Co. 486 U.S. 196 (1988); Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264 (1978). This court lacks authority to extend the time for appeal, and the district court has twice declined to do so.
It is therefore ORDERED that the motion to dismiss this appeal as untimely is granted.
The Honorable Robert H. Cleland, U.S. District Judge for the Eastern District of Michigan, sitting by designation