Robert L. Jones Sidney J. Anderson v. George T. Brown , 845 F.2d 326 ( 1988 )

845 F.2d 326

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Robert L. JONES; Sidney J. Anderson, Plaintiffs-Appellants,
v.
George T. BROWN, et al., Defendants-Appellees.

No. 88-5293.

United States Court of Appeals, Sixth Circuit.

April 18, 1988.

1

Before WELLFORD and ALAN E. NORRIS, Circuit Judges and JULIAN A. COOK, Jr., District Judge.*

ORDER

2

The plaintiff appeals from an order entered February 8, 1988 denying the plaintiff's motion to reinstate this securities fraud action. On February 16, 1988, the plaintiff filed a motion to alter, amend or vacate that order, or in the alternative, moved the district court to make specific findings of fact and set this matter for hearing. To date, the district court has not ruled on these motions. A notice of appeal was filed March 9, 1988.

3

Rule 4(a)(1), Federal Rules of Appellate Procedure, provides that a notice of appeal shall be filed within thirty (30) days after entry of the order appealed from. However, a motion to alter or amend the judgment under Rule 59(e), Federal Rules of Civil Procedure, tolls the time for appeal if it is served not later than ten (10) days after entry of the judgment. Rule 4(a)(4), Federal Rules of Appellate Procedure; Marrical v. Detroit News, Inc., 805 F.2d 169, 171 (6th Cir.1986) (per curiam ); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1019 (6th Cir.1983). The requirement of a timely notice of appeal is "mandatory and jurisdictional." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978). Consequently, a notice of appeal filed before disposition of a time-tolling motion is premature and 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 that motion to confer jurisdiction on this Court. Rule 4(a)(4), Fed.R.App.P.; Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam).

4

The plaintiff's motion to alter or amend the order of Feburary 8 tolled the time for filing a notice of appeal. The notice of appeal filed March 9, 1988 is therefore premature and without effect. Accordingly,

5

It is ORDERED that this appeal is dismissed. Rule 9(b)(1), Rules of the Sixth Circuit. Should the plaintiff wish to appeal after the motions filed Feburary 16 have been adjudicated, a new notice of appeal must be filed pursuant to the provisions of Rule 4(a)(4).

*

The Honorable Julian A. Cook, Jr., U.S. District Judge for the Eastern District of Michigan, sitting by designation