Frederick Dunlap v. City of Lima Gregory D. Roberts, Officer of Lima Police Department Joseph, Officer of Lima Police Department

895 F.2d 1412

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Frederick DUNLAP, Plaintiff-Appellant,
v.
CITY OF LIMA; Gregory D. Roberts, Officer of Lima Police
Department; Joseph, Officer of Lima Police
Department, Defendants-Appellees.

No. 90-3069.

United States Court of Appeals, Sixth Circuit.

Feb. 8, 1990.

1

Before KEITH and ALAN E. NORRIS, Circuit Judges, and CHARLES W. JOINER, Senior District Judge*.

ORDER

2

The plaintiff appeals summary judgment for the defendant and dismissal of his pendent state claims in this civil rights action for false arrest. The district court's judgment was entered on December 19, 1989. On December 28, within 10 days as computed by Fed.R.Civ.P. 6(a), the plaintiff served and filed a motion for reconsideration and modification of judgment in which he sought an amendment of the judgment to reflect that the dismissal of the pendent state claims was without prejudice. The defendants opposed the motion and argued that the court need not reconsider and modify the previous judgment or, if it did, the judgment should reflect that the dismissal of the state claims should be on the merits and with prejudice. Prior to the disposition of the motion for reconsideration and modification, the plaintiff filed a notice of appeal.

3

A motion to reconsider or for modification of a judgment is properly construed as a motion to alter or amend pursuant to Fed.R.Civ.P. 59(e). Huff v. Metropolitan Life Insurance Co., 675 F.2d 119, 122 (6th Cir.1982); Smith v. Hudson, 600 F.2d 60, 62 (6th Cir.1979). The filing of a notice of appeal during the pendency of a timely Fed.R.Civ.P. 59(e) motion is of no effect. Fed.R.App.P. 4(a)(4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam). A new notice of appeal must be filed within the prescribed time measured from entry of the order disposing of the motion. Fed.R.App.P. 4(a)(4).

4

It is therefore ORDERED that this appeal is dismissed sua sponte for lack of jurisdiction, without prejudice to the timely perfection of a new appeal following disposition of the pending motion. Rule 9(b)(1), Local Rules of the Sixth Circuit.

*

The Honorable Charles W. Joiner, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation