Joseph Gigger, A/K/A Joseph Johnson v. M. Wolfe and W. Goudy , 843 F.2d 1391 ( 1988 )

843 F.2d 1391

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Joseph GIGGER, A/K/A Joseph Johnson, Plaintiff-Appellant,
v.
M. WOLFE and W. Goudy, et al., Defendants-Appellees.

No. 87-6255.

United States Court of Appeals, Sixth Circuit.

April 5, 1988.

1

Before LIVELY, Chief Judge, RALPH B. GUY, Jr., Circuit Judge, and AVERN COHN, District Judge.*

ORDER

2

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

3

A review of the record indicates that the judgment of the district court was entered on October 19, 1987. A motion to alter or amend judgment to provide that the state defendants be dismissed with prejudice was served on October 30, 1987, and filed on November 2, 1987. This Fed.R.Civ.P. 59(e) motion was served within 10 days as calculated pursuant to Fed.R.Civ.P. 6(a) and tolled the appeals period as provided by Fed.R.App.P. 4(a)(4). A timely Fed.R.Civ.P. 59(e) motion tolls the appeals period as to all parties. Marrical v. Detroit News, Inc., 805 F.2d 169, 171 (6th Cir.1986) (per curiam). Plaintiff's notice of appeal filed on November 13, 1987, from the October 19, 1987, judgment is premature. At the time the notice of appeal was filed, the Fed.R.Civ.P. 59(e) motion had not been ruled upon. Fed.R.App.P. 4(a)(4) provides that a notice of appeal filed before the disposition of a timely Rule 59(e) 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...." A timely notice of appeal is mandatory and jurisdictional. Acosta v. Louisiana Dep't of HHR, --- U.S. ----, 106 S.Ct. 2876 (1986); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam).

4

It is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction.

*

The Honorable Avern Cohn, U.S. District Judge for the Eastern District of Michigan, sitting by designation