Bill Tino v. Clete Webb , 791 F.2d 935 ( 1986 )

791 F.2d 935

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
BILL TINO, Plaintiff-Appellant,
v.
CLETE WEBB, ET AL., Defendants-Appellees.

86-5275

United States Court of Appeals, Sixth Circuit.

4/11/86

APPEAL DISMISSED

E.D.Tenn.

ORDER

BEFORE: KEITH, MARTIN and GUY, Circuit Judges.

1

This appeal has been referred to this panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit.

2

A review of the record indicates that the decision of the district court was entered April 11, 1985. A Rule 60(b), Federal Rules of Civil Procedure, motion to reconsider was served on April 16, 1985, and contained a request for leave to appeal. This motion is properly construed as a Rule 59(c), Federal Rules of Civil Procedure, motion. Cosgrove v. Smith, 697 F.2d 1125 (D.C. Cir. 1983); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37 (2nd Cir. 1982); Miller v. Leavenworth-Jefferson Electric Co-op., 653 F.2d 1378 (10th Cir. 1981); Dove v. Codesco, 569 F.2d 807 (4th Cir. 1978). The motion tolled the appeals period. Rule 4(a)(4), Federal Rules of Appellate Procedure. Reconsideration was denied on March 5, 1986.

3

Rule 4(a)(4), Federal Rules of Appellate Procedure, provides that a notice of appeal filed before the disposition of a time tolling motion 'shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion'. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). The request for leave to appeal which was treated as a notice of appeal is premature.

4

It is ORDERED that the appeal be and hereby is dismissed as premature.