James Haynes v. William Hudson Gloria Richardson

881 F.2d 1076, 1989 U.S. App. LEXIS 11996, 1989 WL 90783

Opinion

881 F.2d 1076

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
James HAYNES, Plaintiff-Appellant,
v.
William HUDSON; Gloria Richardson, Defendants-Appellees.

No. 89-1660.

United States Court of Appeals, Sixth Circuit.

Aug. 11, 1989.

Before NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges, and RICHARD B. McQUADE, Jr., 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 of the district court was entered April 25, 1989. On May 3, 1989, the district court filed plaintiff's petition for rehearing dated April 29, 1989. This Fed.R.Civ.P. 59(e) motion was brought within ten days of entry of judgment and tolled the appeal period as provided by Fed.R.App.P. 4(a)(4). See Mondrow v. Fountain House, 867 F.2d 798, 799 (3d Cir.1989); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.1988); Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir.1988), cert. denied, 109 S.Ct. 2436 (1989). The May 31, 1989, notice of appeal filed prior to the disposition of 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. Osterneck v. Ernst & Whinney, 109 S.Ct. 987, 990 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (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.

* The Honorable Richard B. McQuade, Jr., U.S. District Judge for the Northern District of Ohio, sitting by designation