815 F2d 702 Davidson v. Motor Hotel Management Inc

815 F.2d 702

Doris DAVIDSON; Nellie Maxwell, Plaintiffs-Appellees,
MOTOR HOTEL MANAGEMENT, INC., a Delaware Corporation,
Hilton Hotels Corporation, Defendant

No. 86-1842.

United States Court of Appeals, Sixth Circuit.

March 13, 1987.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before LIVELY, Chief Judge, BOGGS, Circuit Judge, and CELEBREZZE, Senior Circuit Judge.


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Defendant Motor Hotel Management, Inc. appeals the judgment for plaintiffs in this action under the Age Discrimination in Employment Act. The plaintiffs now move for dismissal of the appeal on grounds the judgment appealed from was not final for purposes of 28 U.S.C. Sec. 1291. The defendant does not oppose the motion, stating it filed the notice of appeal because of uncertainty as to how to preserve the issues it seeks to raise on appeal.


The record shows the district court entered judgment, based upon the jury's verdict, on August 15, 1986. Ten days later, the defendant filed motions for a new trial and for judgment n.o.v. and the plaintiff filed a motion to amend the judgment. The defendant then filed the notice of appeal giving rise to this appeal on September 15, 1986.


Subsequently, the district court entered an order on October 16, 1986, denying the defendant's motions, but granting the plaintiffs' motion to amend the judgment. The amended judgment was entered on January 27, 1987. The defendant filed a second notice of appeal on February 5, 1987. That appeal is docketed with this Court as Case No. 87-1162.


Pursuant to Rule 4(a)(4), Federal Rules of Appellate Procedure, motions timely filed or served under Rule 59, Federal Rules of Civil Procedure, toll the time for filing a notice of appeal from the underlying judgment. Rule 4(a)(4) further provides that any notice of appeal filed before the disposition of such motions shall have no effect. In this case, therefore, the defendant's notice of appeal filed on September 15, 1986, had no effect and did not give this Court appellate jurisdiction over any of the proceedings below. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam ). Accordingly,


It is ORDERED that the motion to dismiss is granted. This order shall have no effect upon the appeal in Case No. 87-1162 wherein the defendant filed a timely notice of appeal under Rule 4(a)(4). The latter appeal permits this Court to review all proceedings below.