Ricciardi v. Shimko

815 F.2d 705 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Patsy RICCIARDI, Plaintiff-Appellant, v. Timothy SHIMKO; Janet Crossland; Det. Hugh Sullivan; Sgt. Askew; Officer William Dasjnick; Officer Elisabeth Wright; City of Akron; Law Firm Spagenberg, Shibley, Traci and Lancione, Defendants-Appellees. No. 86-4095. United States Court of Appeals, Sixth Circuit. March 26, 1987. Before: ENGEL and GUY, Circuit Judges; and PECK, Senior Circuit Judge. ORDER [1] Appellant has responded to this Court's order to show cause why this appeal should not be dismissed as untimely filed. [2] On September 30, 1986, the district court entered an order dismissing appellant's civil rights action. Absent any time-tolling motion, the notice of appeal was due on October 30, 1986. The motion to reconsider the judgment of September 30, 1986, was served on October 20, 1986. Because the motion was not served within 10 days of entry of the order as required by Rule 59(e), Federal Rules of Civil Procedure, the motion did not toll the time for filing the notice of appeal. Myers v. Ace Hardware, 777 F.2d 1099 (6th Cir.1985). [3] The notice of appeal, filed November 26, 1986, is 27 days late. Rule 4(a) and 26(b), Federal Rules of Appellate Procedure. 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). Accordingly, this appeal is dismissed. Rule 9(b)(1), Rules of the Sixth Circuit. The "motion instanter" is rendered moot.