767 F. 2d 919 - Mildred Banks v. United States Postal Service
767 F2d 919 Mildred Banks v. United States Postal Service
767 F.2d 919
MILDRED BANKS, PLAINTIFF-APPELLANT,
v.
UNITED STATES POSTAL SERVICE; POSTMASTER GENERAL, WILLIAM F.
BOGLER, DEFENDANTS-APPELLEES.
NO. 85-1106
United States Court of Appeals, Sixth Circuit.
6/7/85
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
E.D.Mich.
APPEAL DISMISSED
ORDER
BEFORE: MERRITT, WELLFORD and MILBURN, Circuit Judges.
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This appeal has been referred to this panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit.
It appears from the record that the final order was entered November 15, 1984. A Rule 59(e), Federal Rules of Civil Procedure, motion to reinstate was untimely served on December 3, 1984, and failed to toll the appeals period. Rule 4(a)(4), Federal Rules of Appellate Procedure. The motion to reinstate was denied on January 8, 1985. The notice of appeal filed on January 29, 1985 was 15 days late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure.
The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. 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. Bank and Trust Co. of Marquette, 717 F.2d 1016 (6th Cir. 1983). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time for filing a notice of appeal.
It does not appear from the district court record that a separate entry of judgment as required by Rule 58, Federal Rules of Civil Procedure, has been entered by the district court. After the district court enters a separate judgment as required by Rule 58, appellant may file a new notice of appeal within the time period provided by Rule 4(a), Federal Rules of Appellate Procedure.
It is ORDERED that the appeal be and it hereby is dismissed without prejudice to appellant filing a new notice of appeal after the district court enters a separate judgment as required by Rule 58, Federal Rules of Civil Procedure. Rule 9(d)(1), Rules of the Sixth Circuit.