803 F. 2d 718 - Earl Buchanan v. John D Rees Warden

BEFORE: KEITH, MERRITT and NORRIS, Circuit Judges

This matter is before the Court upon consideration of the appellant's motion for appointment of counsel and response to this Court's show cause order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction.

A review of the record indicates that the decision of the district court was entered April 18, 1986. No extensions of time for filing the notice of appeal was sought but on April 25, 1986, appellant sought an extension of time for filing a motion to reconsider. No ruling was made on that motion. Rule 6(b), Federal Rules of Civil Procedure, prohibits the district court from granting such an extension. On May 5, 1986, appellant served a motion for reconsideration which was denied on June 5, 1986. The motion for reconsideration was not timely served as required by Rule 59(e), Federal Rules of Civil Procedure, and did not toll the appeals period. Rule 4(a)(4), Federal Rules of Appellate Procedure. Appellant appealed from the April 18, 1986, decision of the June 5, 1986, order denying reconsideration.

Motions for reconsideration or to set aside a judgment have been held analogous to a Rule 59(e), Federal Rules of Civil Procedure. Smith v. Hudson, 600 F.2d 60, 62 (6th Cir.), cert. dismissed, 444 U.S. 986 (1979); Williams v. Town of Okoboji, 599 F.2d 238 (8th Cir. 1979); Ohio Inns, Inc. v. Nye, 542 F.2d 673 (6th Cir. 1976), cert. denied, 430 U.S. 946 (1977); Peabody Coal Co. v. Local Union Nos. 1734, 1508 and 1548, UMW, 484 F.2d 78, 85 (6th Cir. 1973), cert. denied, 430 U.S. 940 (1977). An order denying a Rule 59 motion is not appealable but can be reviewed only with a timely notice of appeal from the final judgment. Carpenter v. Klosters Rederi A/S, 604 F.2d 11 (5th Cir. 1979).

The June 11, 1986, notice of appeal was not filed within 30 days after the entry of the April 18, 1986, decision as prescribed by Rule 4(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 National Bank & Trust Co., 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 is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(d)(1), Rules of the Sixth Circuit.

It is further ORDERED that the motion for appointment of counsel be and hereby is denied.