Billy L. Vance v. Pilot Life Insurance Company v. Lumberman's Mutual Casualty Company, Third Party

810 F.2d 204

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Billy L. VANCE, Plaintiff-Appellant,
v.
PILOT LIFE INSURANCE COMPANY, Defendant-Appellant,
v.
LUMBERMAN'S MUTUAL CASUALTY COMPANY, Third Party Defendant.

Nos. 86-3685, 86-3878.

United States Court of Appeals, Sixth Circuit.

Nov. 10, 1986.

Before KENNEDY, MARTIN and BOGGS, Circuit Judges.

ORDER

1

This matter is before the Court upon consideration of appellee/cross-appellant Vance's motion to dismiss as untimely the appeal in case no. 86-3685: Billy L. Vance v. Pilot Insurance Company, et al. Appellant/cross-appellee Pilot has filed a response in opposition to that motion.

2

Appellee/cross-appellant Vance bases his motion to dismiss case no. 86-3685 upon the contention that the notice of appeal was not filed in compliance with the time limitations provided in Rule 4(a)(1), Federal Rules of Appellate Procedure. That argument is in error, however, as that rule stipulates that a notice of appeal must be filed within 30 days of the district court's entry of the order as judgment appealed from, an event which according to appellee/cross-appellant Vance occurred on June 16, 1986. Examination of the record on appeal reveals that on that date the district court merely filed an opinion and order granting appellee/cross-appellant Vance's and appellee/cross-appellee Lumberman's motions for summary judgment. No corresponding judgment, however, was entered until June 23, 1986. Pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, appellant/cross-appellee Pilot was allowed 30 days after that date, or until July 23, 1986, to file a notice of appeal. As that action was actually accomplished on July 18, 1986, the motion to dismiss the appeal in case no. 86-3685 must be denied.

3

The opposite conclusion must be reached in regard to appellee/cross-appellant Vance's cross-appeal in case no. 86-3878: Billy L. Vance v. Pilot Life Insurance Company, et al. Under Rule 4(a)(3), Federal Rules of Appellate Procedure, appellee/cross-appellant Vance was allowed 14 days after the filing of the original notice of appeal, or until August 1, 1986, to file a notice of cross-appeal. Appellee/cross-appellant Vance, however, did not file his notice of cross-appeal until September 19, 1986.

4

Compliance with Rule 4(a), Federal Rules of Appellate Procedure, is a mandatory jurisdictional requirement 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(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time in which a notice of appeal is required to be filed. Consequently, appellee/cross-appellant Vance's failure to file a timely notice of cross-appeal deprives this Court of jurisdiction over the matter.

5

Therefore, it is ORDERED that the motion to dismiss the appeal in case no. 86-3685 be and hereby is denied. Furthermore, it is ORDERED that the cross-appeal in case no. 86-3878 be and hereby is dismissed as untimely pursuant to Rule 4(a)(3), Federal Rules of Appellate Procedure.