Edward Ritchie v. Dr. Wisneski Dr. Hoffman and Dr. Andy Marcin

815 F.2d 705, 1987 U.S. App. LEXIS 18221, 1987 WL 36855

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 25, 1987
• Docket: 86-1831
• Status: Unpublished

Opinion

815 F.2d 705

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Edward RITCHIE, Plaintiff-Appellant,
v.
Dr. WISNESKI; Dr. Hoffman and Dr. Andy Marcin, Defendants-Appellees.

No. 86-1831.

United States Court of Appeals, Sixth Circuit.

March 25, 1987.

Before KRUPANSKY, NELSON and BOGGS, Circuit Judges.

ORDER

Appellant has responded to this Court's order to show cause why this appeal should not be dismissed as untimely filed.

On May 29, 1986, the district court entered judgment dismissing appellant's civil rights action. Absent any time tolling motions, the notice of appeal was due June 30, 1986. Rule 4(a), Federal Rules of Appellate Procedure. Appellant's motion for reconsideration, properly construed as a motion to alter or amend (Hull v. Metropolitan Life Insurance Co., 675 F.2d 119 (6th Cir.1982)), did not toll the time for filing the notice of appeal because it was not served within 10 days as required by Rule 4(a), Federal Rules of Appellate Procedure. See Myers v. Ace Hardware, 777 F.2d 1099, (6th Cir.1985). (The due date for serving the motion to reconsider was June 12, 1986; it was not served until June 19, 1986). The notice of appeal, filed August 28, 1986, is 59 days late.

In the response to show cause order, appellant argues that the notice of appeal was filed within 30 days of the order denying his motion for reconsideration. Because the motion was untimely, the notice of appeal was due within 30 days of entry of the May 29, 1986 judgment.

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 Nat'l Bank & Trust Co., 717 F.2d 1016 (6th Cir.1983). Rule 26(a), Federal Rules of Appellate Procedure, specifically provides that this Court cannot extend the time within which to file a notice of appeal.

Accordingly, this appeal is dismissed. Rule 9(b)(1), Rules of the Sixth Circuit.