932 F. 2d 980 - Collier v. Airtex Incorporated R Collier

932 F2d 980 Collier v. Airtex Incorporated R Collier

932 F.2d 980

William R. COLLIER and Interstitial Systems, Inc.,
Plaintiffs-Appellees,
v.
AIRTEX, INCORPORATED and Zonatherm Products, Inc.,
Defendants-Appellants.
William R. COLLIER and Interstitial Systems, Inc.,
Plaintiffs-Appellees,
v.
AIRTEX, INCORPORATED and Zonatherm Products, Inc.,
Defendants-Appellants.

Nos. 91-1077, 91-1197.

United States Court of Appeals, Federal Circuit.

March 22, 1991.

Unpublished Disposition
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

ORDER

RADER, Circuit Judge.

1

Airtex, Incorporated and Zonatherm Products, Inc. (Airtex) move to consolidate appeal nos. 91-1077 and 91-1197. The motion is unopposed. The court, sua sponte, considers whether 91-1077 should be dismissed.

2

Airtex timely submitted certain post-judgment motions to the district court and to the clerk of the district court. Airtex states that 91-1077 was filed as a "protective" notice of appeal due to uncertainty about receipt of one of the motions by the clerk of the district court.* Fed.R.App.P. 4(a)(4) provides that a notice of appeal filed before the disposition of a post-judgment motion shall have no effect. Accordingly, because 91-1077 was filed prematurely, it will be dismissed.

3

We note that Airtex properly filed a second notice of appeal, 91-1197, within 30 days of the district court's ruling on its post-judgment motions. That appeal is timely.

4

Accordingly,

IT IS ORDERED THAT:

5

(1) Airtex's motion to consolidate is denied.

6

(2) Appeal no. 91-1077 is dismissed without prejudice.

7

(3) Appeal no. 91-1197 shall proceed.

*

We assume that the motion was in order in view of the district court's receipt of the motion and subsequent ruling thereon. However, we dismiss appeal no. 91-1077 without prejudice in the event that the matter was not in order