902 F. 2d 1569 - Nationwide Mutual Insurance Company v. Kenneth Roberts

Before WELLFORD and BOGGS, Circuit Judges, and HORACE GILMORE, District Judge*.

Pauline Conley Sidebottom and James O. Keele, defendants in this action for declaratory judgment under an insurance contract, appeal an order of the district court granting summary judgment to the plaintiff. On February 21, 1990, the Clerk entered an order directing the appellants to show cause why their appeal should not be dismissed as untimely. The appellants have not responded to that order.

The order sought to be appealed was entered on the district court's docket sheet on December 20, 1989. There is a question as to whether that order was appealable because a third-party complaint remained pending, see generally 6 MOORE'S FEDERAL PRACTICE p 54.36 (1988). Nonetheless, the notice of appeal filed by the appellants on January 23, 1990, was beyond the 30-day period for filing such a notice under Rule 4(a)(1), Fed.R.App.P. Compliance with that rule is mandatory and jurisdictional. Peake v. First National Bank & Trust Co., 717 F.2d 1016, 1019 (6th Cir.1983).

It is ORDERED that this appeal is dismissed sua sponte for lack of appellate jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit. This order is without prejudice to the defendants seeking appellate review of this matter following the entry of a final judgment.