In Re Harris F. Jacobs, James Roy Williams, Jack M. Lanter v. Secretary of Health and Human Services , 798 F.2d 1414 ( 1986 )

798 F.2d 1414

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
In re Harris F. JACOBS, James Roy Williams, Appellants.
Jack M. LANTER, Plaintiff,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 86-3233.

United States Court of Appeals,
Sixth Circuit.

July 21, 1986.

Before KENNEDY, WELLFORD and MILBURN, Circuit Judges.

1

This matter is before the Court for consideration of appellants' response to this Court's order of May 8, 1986, to show cause why this appeal should not be dismissed as untimely filed.

2

On December 3, 1985, the district court entered an order awarding plaintiff/appellant attorney fees in the sum of $3,000.00. Appellants filed a motion for reconsideration of the December 3, 1985 order; the motion was filed and served December 31, 1985. This motion did not toll the time for filing the notice of appeal because it was not served within 10 days of entry of the order. Rule 4(a)(4), Federal Rules of Appellate Procedure, Myers, v. Ace Hardware, Inc., 777 F.2d 1099 (6th Cir.1985), On January 24, 1986, the district court entered an order denying motion to reconsider. Appellants filed the notice of appeal (38 days late -the due date of the notice of appeal was February 3, 1986). The notice specifies that the appeal is being taken from the order of January 24, 1986.

3

In the notice of appeal, appellant specifies that the appeal is being prosecuted from the order of January 24, 1986, which denied appellant's motion for reconsideration. An order denying a motion to reconsider is nonappealable. Peabody Coal Co. v. Local Union Nos. 1734, 150 & 1548, U.M.W., 484 F.2d 78 (6th Cir.1973), cert. denied, 430 U.S. 946 (1976). While an appeal from an order denying a motion for reconsideration may be construed as an appeal from the underlying judgment, Peabody, supra, the motion for reconsideration must be timely to toll the time in which to file the notice of appeal. Rule 4(a)(4), Federal Rules of Appellate Procedure; Rule 59(e), Federal Rules of Civil Procedure; Myers v. Ace Hardware, 777 F.2d 1099 (6th Cir.1985). Since appellant did not serve the motion to reconsider (properly construed as a Rule 59(e) motion to alter or amend--Hull v. Metropolitan Life Insurance Co., 675 F.2d 119, 122 (6th Cir.1982) ) within 10 days required by Rule 59(e) and Myers, supra, it did not toll the time for filing the notice of appeal. Therefore, the notice of appeal, filed March 13, 1986, is untimely.

4

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