Tulinagwe Thandiwe, Formerly Known as Emmanuel Mitchell v. Sam Chadwick

64 F.3d 663 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Tulinagwe THANDIWE, formerly known as Emmanuel Mitchell, Plaintiff-Appellant, v. Sam CHADWICK, et al., Defendants-Appellees. No. 95-5200. United States Court of Appeals, Sixth Circuit. Aug. 11, 1995. E.D.Tenn., No. 93-00089; Robert Leon Jordan, District Judge. E.D.Tenn. DISMISSED. Before: KENNEDY, WELLFORD and SILER, Circuit Judges. ORDER — 1 — This matter is before the court upon consideration of the appellant's response to this court's order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction on the basis of a late notice of appeal. Appellant responded stating that he was not aware that the motion to reopen the case in the district court did not toll the appeal period and would have filed a notice of appeal if the district court had advised him that his motion to reopen did not toll the time. — 2 — It appears from the record that the final order was entered December 12, 1994. A motion to reopen the case was filed on January 13, 1995. It was not served within ten days after entry of the final order as provided by Fed. R. Civ. P. 59 and failed to toll the appeal period. See Fed. R. App. P. 4(a)(4). The motion to reopen was denied on January 17, 1995. The notice of appeal filed on February 1, 1995, was 21 days late. Fed. R. App. P. 4(a) and 26(a). — 3 — 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. Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir. 1989) (per curiam); McMillan v. Barksdale, 823 F.2d 981, 982 (6th Cir. 1987); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir. 1985); 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. — 4 — Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction.