829 F. 2d 1126 - Marino v. Gorby
829 F2d 1126 Marino v. Gorby
829 F.2d 1126
Richard D. MARINO, Plaintiff-Appellant,
v.
Raymond GORBY; George Kaniclides; Thomas Tedesco; John Ross,
Chief of Police, City of Niles; City of Niles, Ohio, Joseph
Cicero, Mayor; Sanray Corporation, dba Perkins Cake & Steak
House, Defendants-Appellees.
No. 87-3464
United States Court of Appeals, Sixth Circuit.
September 28, 1987.
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
ORDER
Before CORNELIA G. KENNEDY and KRUPANSKY, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.
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The plaintiff appeals from an order denying his motion for relief from an Entry of Stipulation of Dismissal in this civil rights action. The defendants now move to dismiss on grounds that this Court lacks jurisdiction to review the matter. The plaintiff has filed a response.
On February 10, 1981, the parties stipulated to the dismissal of this action with prejudice in order to proceed in a concomitant state action. After the state action was dismissed, the plaintiff moved for relief from the stipulated order. The district court denied the motion for relief on April 10, 1987, and the plaintiff filed a notice of appeal on May 15, 1987. In response to the defendants' subsequent motion to dismiss the appeal as untimely filed, the plaintiff sought an extension of time for filing his notice of appeal from the district court pursuant to Rule 4(a)(5), Federal Rules of Appellant Procedure. The district court denied that motion for extension of time on September 11, 1987.
Rule 4(a)(1), Federal Rules of Appellate Procedure, provides that a notice of appeal must be filed within thirty (30) days after entry of the order being appealed. The thirty-day time limit is mandatory and jurisdictional. Browder v. Director, Dep't of Corrections of III. 434 U.S. 257, 264 (1978).
The plaintiff filed his notice of appeal thirty-five days after entry of the order being appealed, and did not receive an extension of time permitting this late filing. Therefore,
It is ORDERED that the motion to dismiss is granted.