849 F2d 1472 Carpenter v. A Dalrymple & US Pr & US a Oh & Ind
849 F.2d 1472
James M. CARPENTER, Plaintiff-Appellant,
Ken A. DALRYMPLE, Postmaster & Ind., US Post Office;
Richard Bice, PR to Postmaster & Ind., US Post Office; Gene
A. Joseph, Mayor of Lima, OH & IND.; Chester C. Cary;
Functional Development, Inc., Defendants-Appellees.
United States Court of Appeals, Sixth Circuit.
June 13, 1988.
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Before BOYCE F. MARTIN, Jr., MILBURN and RALPH B. GUY Jr., Circuit Judges.
This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.
A review of the record indicates that the judgment of the district court in this civil action was entered March 11, 1988. A motion for reconsideration was served and filed on March 24, 1988. A motion seeking reconsideration of a judgment which is served within ten days of entry of the judgment as computed by Fed.R.Civ.P. 6(a) is properly construed as a time-tolling Fed.R.Civ.P. 59(e) motion. Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.) (en banc), cert. denied, --- U.S. ----, 107 S.Ct. 398 (1986); Cosgrove v. Smith, 697 F.2d 1125 (D.C.Cir.1983); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37 (2d Cir.1982); Huff v. Metropolitan Life Ins. Co., 675 F.2d 119 (6th Cir.1982); Miller v. Leavenworth-Jefferson Elec. Co-op., 653 F.2d 1378 (10th Cir.1981); Smith v. Hudson, 600 F.2d 60 (6th Cir.), cert. dismissed, 444 U.S. 986 (1979). The timely Fed.R.Civ.P. 59(e) motion tolled the appeals period as provided by Fed.R.App.P. 4(a)(4). The April 11, 1987, notice of appeal filed prior to the ruling on the time-tolling 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. Acosta v. Louisiana Dep't of HHR, 478 U.S. 251 (1986); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam).
It is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.