Farese v. Wigen

843 F.2d 1391, 1988 WL 31538

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 11, 1988
• Docket: 87-6338
• Status: Unpublished

Opinion

843 F.2d 1391

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

No. 87-6338.

Thomas FARESE, Plaintiff-Appellant,
v.
G.C. WIGEN, Associate Warden, Federal Correctional
Institution, Ashland, Kentucky, et al.,
Respondents-Appellees.

United States Court of Appeals, Sixth Circuit.

April 11, 1988.

Before LIVELY, Chief Judge, RALPH B. GUY, Jr., Circuit Judge, and AVERN COHN, District Judge.*

ORDER

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 was entered on December 3, 1987. A motion to vacate the judgment was served on December 14, 1987, and filed December 16, 1987. A motion served within 10 days of entry of the judgment as computed by Fed.R.Civ.P. 6(a) which seeks reconsideration of the judgment 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 December 9, 1987, notice of appeal filed prior to the January 8, 1988, order denying the Rule 59(e) 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, --- U.S. ----, 106 S.Ct. 2876 (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.

* The Honorable Avern Cohn, U.S. District Judge for the Eastern District of Michigan, sitting by designation