Reginald McWilliams v. Lamar Alexander

838 F.2d 471, 1988 U.S. App. LEXIS 1351, 1988 WL 7428

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 3, 1988
• Docket: 87-6264
• Status: Unpublished

Opinion

838 F.2d 471

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Reginald McWILLIAMS, Plaintiff-Appellant,
v.
Lamar ALEXANDER, et al., Defendants-Appellees.

No. 87-6264.

United States Court of Appeals, Sixth Circuit.

Feb. 3, 1988.

Before BOYCE F. MARTIN, Jr., RALPH E. GUY, Jr., and BOGGS, Circuit Judges.

ORDER

This matter is before the court upon consideration of the appellant's January 15, 1988, response to this court's December 1, 1987, order directing him to show cause within 21 days why his appeal should not be dismissed for lack of jurisdiction. Appellant states that he mailed his notice of appeal on November 2, 1987.

It appears from the record that the judgment was entered October 13, 1987. The notice of appeal filed on November 13, 1987, was 1 day late. Fed.R.App.P. 4(a) and 26(a).

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Although appellant states he mailed his notice of appeal on November 2, 1987, mailing does not constitute filing. It is the date the notice of appeal is received in the district court which confers jurisdiction on this court. Torras Herreria v. M/V Timur Star, 803 F.2d 215 (6th Cir.1986); Haney v. Mizell Memorial Hosp., 744 F.2d 1467 (11th Cir.1984); Pryor v. Marshall, 711 F.2d 63 (6th Cir.1983). Compliance with Fed.R.App.P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. McMillan v. Barksdale, 823 F.2d 981 (6th Cir.1987); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir.1985); Denley v. Shearson/American Express, Inc., 733 F.2d 39 (6th Cir.1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016 (6th Cir.1983). Fed.R.App.P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

Accordingly, it is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.