Jose Rodriguez v. Raymond T. Toombs, Pete Vidor, Oswoldo Gutierrez, Carmen Palmer, Allen Granholm, D.W. Gay, D. Merritt, R.N., Shie or Horsath , 928 F.2d 1133 ( 1991 )

928 F.2d 1133

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Jose RODRIGUEZ, Plaintiff-Appellant,
v.
Raymond T. TOOMBS, Pete Vidor, Oswoldo Gutierrez, Carmen
Palmer, Allen Granholm, D.W. Gay, D. Merritt,
R.N., Shie Or Horsath, Defendants-Appellees.

No. 90-1339.

United States Court of Appeals, Sixth Circuit.

March 21, 1991.

W.D.Mich., No. 89-50077; Robert Holmes Bell, J.

W.D.Mich.

DISMISSED.

Before BOYCE F. MARTIN, Jr. and MILBURN, Circuit Judges, and ENGEL, Senior Circuit Judge.

ORDER

1

This matter is before the court upon consideration of the appellant's response to this court's January 11, 1991, order directing him to show cause why his appeal should not be dismissed because of a late notice of appeal. Appellant's response stated that he could not prove the date on which the notice of appeal was given to prison authorities.

2

It appears from the record that the judgment was entered on February 2, 1990. A motion for judgment notwithstanding the verdict and new trial was filed February 12, 1990, but not served upon opposing counsel. Such motion failed to toll the appeal period. See Fed.R.Civ.P. 50(b) and 59; Fed.R.App.P. 4(a)(4). The motion was denied March 2, 1990. The notice of appeal dated March 5, 1990, was filed in the district court on March 7, 1990. This filing occurred two days late. Fed.R.App.P. 4(a) and 26(a).

3

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed.R.App.P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir.1989) (per curiam); McMillan v. Barksdale, 823 F.2d 981, 982 (6th Cir.1987); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir.1985); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018 (6th Cir.1983). Fed.R.App.P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

4

Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.