Richard E. Smith v. Highland Park Federation of Teachers Affiliated With Michigan Federation of Teachers

803 F.2d 721

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Richard E. Smith, Plaintiff-Appellant
v.
Highland Park Federation of Teachers affiliated with
Michigan Federation of Teachers, Defendant-Appellee.

No. 83-1251.

United States Court of Appeals, Sixth Circuit.

Sept. 22, 1986.

1

BEFORE: MARTIN, MILBURN and BOGGS, Circuit Judges

ORDER

2

The defendant Highland Park Federation of Teachers moves to dismiss plaintiff's appeal from the district court's order of February 24, 1983. Plaintiff did not file a response in opposition.

3

Plaintiff timely moved to amend the order, then without waiting for a ruling, filed a notice of appeal. By timely serving his motion to amend, plaintiff's appeal time was tolled until April 1, 1983 when the district court denied the motion. Rule 4(a)(4), Federal Rules of Appellate Procedure. Therefore, his notice of appeal, filed on March 23, 1983, was premature. Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1103 (6th Cir. 1985); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1019 (6th Cir. 1983). The timely filing of a notice of appeal is mandatory and jurisdictional. Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 264 (1978). Since plaintiff failed to file a new notice of appeal after entry of the order denying his motion to amend, this Court does not have jurisdiction of the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam); Stacey v. Charles J. Rogers, Inc., 756 F.2d 440 (6th Cir. 1985).

4

It is ORDERED that the motion to dismiss is granted.