786 F. 2d 1163 - Esta Adams v. Jc Penney Company Inc
786 F2d 1163 Esta Adams v. Jc Penney Company Inc
786 F.2d 1163
ESTA M. ADAMS, Plaintiff-Appellant,
v.
J.C. PENNEY COMPANY, INC., Defendant-Appellee.
85-3810
United States Court of Appeals, Sixth Circuit.
2/13/86
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
N.D.Ohio
APPEAL DISMISSED
ORDER
BEFORE: MARTIN, KRUPANSKY and GUY, Circuit Judges.
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This matter is before the Court on the motion to dismiss the appeal filed by the J.C. Penney Company, Inc., on November 20, 1985. The appellant filed a response in opposition on January 13, 1986. The appellant's response is untimely. Rule 8(a), Rules of the Sixth Circuit, allows ten days from service of the motion to respond.
The appellant is appealing the district court order granting summary judgment in favor of the appellee. The case was brought pursuant to the Age Discrimination in Employment Act, 29 U.S.C. Sec. 623(A) and the Rehabilitation Act, 29 U.S.C. Secs. 793-94.
The motion to dismiss is based on appellee's contention that the notice of appeal was filed late. The judgment from which appellant seeks to appeal was filed on August 27, 1985; the notice of appeal was not filed until September 27, 1985. The notice of appeal was one day late. Pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, appellant is required to have filed her notice of appeal within 30 days from entry of judgment. This Court does not have jurisdiction to grant an extension of time. Peake v. First National Bank and Trust Co. of Marquette, 717 F2d 1016 (6th Cir. 1983).
A motion for an extension of time must be filed in the district court. Rule 4(a)(5), Federal Rules of Appellate Procedure. The language of Federal Rule of Appellate Procedure 4(a)(5) 'requires that a motion for an extension of time to file a notice of appeal be filed not later than thirty days after the expiration of the original appeal time prescribed by the Rule.' Pryor v. Marshall, 711 F.2d 63, 64 (6th Cir. 1983).
For the foregoing reasons, it is ORDERED that the appeal be and hereby is dismissed.