Roger Justice v. James Murphy, Judge Robert Bulford James McCarthy Richard Kutuchief Robert Oldham Thomas Ciccolini , 889 F.2d 1087 ( 1989 )

889 F.2d 1087

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Roger JUSTICE, Plaintiff-Appellant,
v.
James MURPHY, Judge; Robert Bulford; James McCarthy;
Richard Kutuchief; Robert Oldham; Thomas
Ciccolini, Defendants-Appellees.

No. 89-3757.

United States Court of Appeals, Sixth Circuit.

Nov. 15, 1989.

1

Before MERRITT, Chief Judge, WELLFORD, Circuit Judge and ROBERT E. DeMASCIO, Senior 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 July 20, 1989. A Fed.R.Civ.P. 59(e) motion to vacate was served on July 28, 1989, within ten days of entry of judgment and tolled the appeals period. See Fed.R.App.P. 4(a)(4). The August 14, 1989, notice of appeal filed prior to the August 17, 1989, ruling denying the Rule 59(e) motion is premature. 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. Osterneck v. Ernst & Whinney, 109 S.Ct. 987, 990 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam).

4

It is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.

*

The Honorable Robert E. DeMascio, Senior District Judge for the Eastern District of Michigan, sitting by designation