Bernard E. Mustee v. E.L. Mustee & Sons, Inc. Frank A. Mustee Robert J. Mustee , 780 F.2d 1022 ( 1985 )

780 F.2d 1022

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
(The decision of the Court is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter.)
BERNARD E. MUSTEE, Plaintiff-Appellant,
v.
E.L. MUSTEE & SONS, INC.; FRANK A. MUSTEE; ROBERT J. MUSTEE,
Defendants-Appellees.

85-3351

United States Court of Appeals, Sixth Circuit.

11/6/85

APPEAL DISMISSED

N.D.Ohio

ORDER

BEFORE: MARTIN, JONES and CONTIE, Circuit Judges.

1

This matter is before the Court on the motion of the appellant Bernard E. Mustee to determine jurisdiction and stay the briefing schedule. The appellees have responded thereto.

2

Appellant asserts that his motion to reconsider filed on March 27, 1985, was filed pursuant to Federal Rule of Civil Procedure 59(e) and that this Court therefore lacks jurisdiction over the appeal. The appellees assert that the motion to reconsider was filed pursuant to Federal Rule of Civil Procedure 60(b) and that this Court has jurisdiction over the appeal.

3

This Court has held that a timely motion to reconsider may properly be treated as a Rule 59(e) motion to alter or amend judgment. Smith v. Hudson, 600 F.2d 60, 62 (6th Cir.), cert. dismissed, 444 U.S. 986 (1979). Based on the facts before us in this case, we so treat this motion.

4

Federal Rule of Civil Procedure 59(e) provides that 'a motion to alter or amend the judgment shall be served not later than ten days after entry of the judgment.' The order of the district court granting summary judgment was filed on March 21, 1985; the motion to reconsider was filed on March 27, 1985. Thus, the motion was timely if construed as a Rule 59(e) motion and tolled the running of the time to appeal to this Court. Peake v. First National Bank and Trust Co. of Marquette, 717 F.2d 1016, 1018-19 (6th Cir. 1983).

5

For the foregoing reasons, it is ORDERED that the motion to reconsider be construed as a motion to amend or alter judgment according to the provisions of Federal Rule of Civil Procedure 59(e).

6

Accordingly, it is ORDERED that the appeal be and it hereby is dismissed as premature.