856 F.2d 194
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
JANITA THERESA CORPORATION; Janita Theresa Bearden;
Plaintiffs-Appellants,
Lawrence E. Jones; India K. Jones, Plaintiffs,
v.
INTERNAL REVENUE SERVICE; Washington Post; International
Press Syndicate, Defendants-Appellees.
No. 88-1652.
United States Court of Appeals, Sixth Circuit.
August 25, 1988.
Before NATHANIEL R. JONES and RALPH B. GUY, Jr., Circuit Judges, and CARL B. RUBIN, Chief District Judge.*
ORDER
This matter is before the court upon consideration of the appellant's response to this court's July 19, 1988, order directing her to show cause why her appeal should not be dismissed for lack of jurisdiction. Appellant has filed a lengthy response in which she states that she did not receive the judgment of the district court through the mails until June 21, 1988. She further argues that the appeal should be heard for equitable reasons.
A review of the record indicates that appellant seeks to appeal the dismissal of two civil actions in district court Case Nos. 87-74593 and 88-70371. The judgment dismissing Case No. 87-74593 was entered January 29, 1988. Plaintiff filed her motion for reconsideration on March 3, 1988, which failed to toll the appeals period. The notice of appeal filed in Case No. 87-74593 on June 16, 1988, was 79 days late. Fed.R.App.P. 4(a) and 26(a).
It further appears from the record that the judgment in Case No. 88-70371 was filed February 26, 1988 and entered March 4, 1988. Plaintiff filed her motion for reconsideration on March 3, 1988; that motion served to toll the appeals period in Case No. 88-70371. The judgment denying the motion to reconsider was entered March 24, 1988. The notice of appeal filed in Case No. 88-70371 on June 16, 1988, was 24 days late. Fed.R.App.P. 4(a) and 26(a).
This court lacks jurisdiction in this appeal. Fed.R.Civ.P. 77(d) states that lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed.
The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. 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, 982 (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, 41 (6th Cir.1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018 (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.
The Honorable Carl B. Rubin, Chief U.S. District Judge for the Southern District of Ohio, sitting by designation