Hall v. Legg ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20559
Summary Calendar
VICTOR LEE HALL,
Plaintiff-Appellant,
versus
THERESA A. LEGG; E.D. MURDOCK,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 96-CV-3719
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July 29, 1999
Before KING, Chief Judge, HIGGINBOTHAM and EMILIO M. GARZA,
Circuit Judges.
PER CURIAM:*
This court must examine the basis of its jurisdiction on its
own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th
Cir. 1987). An examination of the record in this case discloses
that the notice of appeal is ineffective.
Victor Lee Hall, prisoner #624871, seeks to appeal the
district court’s dismissal of his 42 U.S.C. § 1983 complaint.
The final judgment was entered on April 23, 1998. On April 22,
1998, Hall filed a motion for new trial and amendment of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
judgment. On June 19, 1998, after being granted an extension of
time in which to file his appeal, Hall filed his notice of
appeal. The district court has not ruled on the motion for new
trial and amendment of judgment.
Rule 4(a)(4), Fed. R. App. P., provides that, if a timely
motion is made pursuant to Fed. R. Civ. P. 59, a notice of appeal
filed after entry of the judgment, but before disposition of the
motion, is ineffective until the entry of the order disposing of
the motion. A motion for new trial is a Rule 59(b) motion and a
motion to alter or amend judgment is a Rule 59(e) motion. Hall’s
motion was filed within the 10-day limit for Rule 59 motions.
See Fed. R. Civ. P. 59(b), (e).
As the Rule 59 motion has not yet been disposed of, the
petitioner’s notice of appeal is ineffective. See Burt v. Ware,
14 F.3d 256, 260-61 (5th Cir. 1994). Accordingly, the case must
be remanded, and the record returned to the district court, for
consideration of the outstanding motion.
REMANDED.