Nicole Barber, et al v. Bank of America, N.A., et al
OPINION filed :This appeal is DISMISSED as this court is without jurisdiction to consider it. John M. Rogers, Richard Allen Griffin and Bernice Bouie Donald, Circuit Judges.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0895n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BANK OF AMERICA, N.A., et al.
Oct 16, 2013
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
Before: ROGERS, GRIFFIN, and DONALD, Circuit Judges.
BERNICE B. DONALD, Circuit Judge. Nicole Barber and Alvin Glasper appeal the
district court’s grant of a Federal Rule of Civil Procedure (“Rule”) 12(b)(6) motion to dismiss their
ten-count complaint. The district court's dismissal order and judgment were entered on January 30,
2013, (Page ID # 638, 655), and Appellants filed a notice of appeal on March 2, 2013, (Page ID #
656). Although Appellants contend that the notice of appeal was timely, (Appellant Br. at 7), Federal
Rule of Appellate Procedure ("FRAP") 4(a)(1)(A) prescribes an appeal period of thirty days from
the entry of judgment, which expired on March 1, 2013. Appellants also filed no motions under
FRAP 4(a)(5) or (6) to extend or re-open the time to file an appeal. Accordingly, Appellants' notice
of appeal was untimely.
Barber v. Bank of America
FRAP 4 effectuates the statutory mandate that "no appeal shall bring any judgment, order
or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless
notice of appeal is filed within thirty days after the entry of such judgment, order or decree." 28
U.S.C. § 2107(a). Consequently, both "the Supreme Court and this Court consistently have termed
[its deadlines] mandatory and jurisdictional." Ultimate Appliance CC v. Kirby Co., 601 F.3d 414,
415 (6th Cir. 2010) (collecting cases). "[T]he Rule 4 clock starts when a judgment is entered, not
when service of the judgment is effected[,]" id. at 416, and this court, like the U.S. Supreme Court,
"has no authority to create equitable exceptions to jurisdictional requirements," Bowles v. Russell,
551 U.S. 205, 214 (2007). Only Congress "may authorize courts to promulgate rules that excuse
compliance with the statutory time limits," id., and no such authorization or rules alleviate the
mandate that FRAP 4(a)(1)(A) advances.
Accordingly, this appeal is DISMISSED as this court is without jurisdiction to consider it.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?