The Ohio Environmental Council v. Vari-Seal Manufacturing Corporation , 892 F.2d 1044 ( 1990 )

892 F.2d 1044

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
The OHIO ENVIRONMENTAL COUNCIL, Plaintiff-Appellant,
v.
VARI-SEAL MANUFACTURING CORPORATION, Defendant-Appellee.

No. 89-3307.

United States Court of Appeals, Sixth Circuit.

Jan. 9, 1990.

Before BOYCE F. MARTIN, Jr. and WELLFORD, Circuit Judges, and LIVELY, Senior Circuit Judge.

ORDER

1

The Ohio Environmental Council appeals the order dismissing for lack of subject matter jurisdiction this civil action brought under the Clean Water Act. For the following reasons, we remand.

2

On March 10, 1989, the district court granted Vari-Seal Manufacturing Corporation's motion to dismiss, in an order written illegibly in the margin of Vari-Seal's motion. This court has specifically rejected the use of such "marginal orders" in United States v. Woods, 885 F.2d 352, 353-54 (6th Cir.1989).

3

On March 15, the Ohio Environmental Council filed a motion for reconsideration under Rule 59 of the Federal Rules of Civil Procedure. On April 7, before the district court had acted on the motion for reconsideration, the Ohio Environmental Council filed a notice of appeal from the March 10 dismissal.

4

Under Rule 4(a)(4) of the Federal Rules of Appellate Procedure, a notice of appeal filed while a motion is pending under Rule 59 of the Federal Rules of Civil Procedure "shall have no effect." A new notice of appeal must be filed after the district court disposes of the pending motion. The record shows that the Ohio Environmental Council never filed a new notice of appeal after the district court ruled on the motion for reconsideration. This case, therefore, is not properly before this court.

5

Accordingly, this case is remanded to the district court.