872 F. 2d 1028 - Redfield v. Wagner

Before BOYCE F. MARTIN, Jr. and RYAN, Circuit Judges, and JOHN W. POTTER, District Judge*.

This matter is before the court upon consideration of appellant's response to this court's order of January 6, 1989, directing him to show cause as to why the appeal should not be dismissed for lack of jurisdiction. Appellee has filed a motion to dismiss the appeal for the same reason.

Review of the record indicates that the district court entered its final judgment dismissing appellant's civil rights action on October 27, 1988. Appellant, however, did not file a notice of appeal until December 15, 1988. Accordingly, the notice of appeal was 17 days late.

An appellant's failure to file a timely notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed.R.App.P. 4(a) is a mandatory, jurisdictional prerequisite which this court can neither waive nor extend. Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018 (6th Cir.1983). Fed.R.Civ.P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal. Furthermore, in his response to this court's order of January 6, 1989, appellant has not addressed the question of the untimeliness of the notice of appeal, but has only discussed the merits of his claim.

Accordingly, it is ORDERED that the motion to dismiss be granted and the appeal be and hereby is dismissed for lack of jurisdiction. Rule 8, Rules of the Sixth Circuit.