817 F2d 105 Smith v. Penn Central Corporation

817 F.2d 105

John SMITH, Kenneth Roberts, and Ambassador East Development
Corporation, a Michigan Corporation, Plaintiffs-Appellants,
PENN CENTRAL CORPORATION, a Pennsylvania Corporation,

No. 87-1169.

United States Court of Appeals, Sixth Circuit.

April 28, 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 MERRITT, WELLFORD and NELSON, Circuit Judges.


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The plaintiffs appeal a district court order granting the defendant's motion for summary judgment in this diversity action for specific performance of a contract for the conveyance of land. The defendant now moves to dismiss this appeal as premature on grounds that notice of appeal was filed before the determination of a timely filed motion to alter or amend the judgment under Fed. R. Civ. P. 59(e). The plaintiffs have not filed a response.


The district court's judgment of February 10, 1987 granted summary judgment to the defendant and dismissed the entire action. The plaintiffs filed their notice of appeal on February 11, 1987, and on February 19, 1987 the defendant filed a timely motion to alter or amend the judgment to reflect the unadjudicated pendency of its counterclaims. The motion to alter or amend was subsequently granted.


Federal Rule of Appellate Procedure 4(a)(4) provides that:


If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party: ... (iii) under Rule 59 to alter or amend the judgment ..., the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions 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 as provided above....


Rule 4(a)(4) applies by its language to notices of appeal filed before the filing of a Rule 59(e) motion. See Griggs v. Provident Consumer Discount Company, 459 U.S. 56 (1982); Harcon Barge Company, Inc. v. D & G Boat Rentals, Inc., 746 F.2d 278 (5th Cir. 1984), cert. denied, 107 S. Ct. 398 (1986). The instant notice of appeal is therefore of no effect, and this Court lacks jurisdiction to hear the appeal. Fed. R. App. P. 4(a)(4); Griggs, 459 U.S. at 61. Accordingly,


It is ORDERED that the defendant's motion to dismiss is granted.