Retirement Centers of America, Inc. v. St. Leonard Center, Inc., Franciscan Health Systems of Dayton, Inc.

972 F.2d 348, 1992 U.S. App. LEXIS 26141, 1992 WL 198573

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 18, 1992
• Docket: 92-3802
• Status: Unpublished

Opinion

972 F.2d 348

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
RETIREMENT CENTERS OF AMERICA, INC., Plaintiff-Appellee,
v.
ST. LEONARD CENTER, INC., Defendant-Appellant,
Franciscan Health Systems of Dayton, Inc., Defendant.

No. 92-3802.

United States Court of Appeals, Sixth Circuit.

Aug. 18, 1992.

Before KEITH and BATCHELDER, Circuit Judges, and HOOD, District Judge.*

ORDER

The defendant, St. Leonard Center, Inc., appeals the judgment in favor of the plaintiff in this diversity contract action. The district court's judgment is dated July 8, 1992, and was formally entered upon the court's docket the following day. Within ten days, as computed pursuant to Fed.R.Civ.P. 6(a), the plaintiff brought a motion to amend the judgment to include an award of prejudgment interest in its favor. While that motion was pending, the defendant filed its notice of appeal from the judgment.

A notice of appeal filed during the pendency of a timely motion to amend is of no effect. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam); Fed.R.App.P. 4(a)(4). Rather, a new notice of appeal from the final judgment must be filed upon disposition of the motion. Id. A motion to amend the judgment to include prejudgment interest has this time-tolling effect. Osterneck v. Ernst & Whinney, 489 U.S. 169, 175 (1989); Stern v. Shouldice, 706 F.2d 742, 747 (6th Cir.), cert. denied, 464 U.S. 993 (1983).

Therefore, it is ORDERED that this appeal is dismissed sua sponte for lack of jurisdiction.

* The Honorable Joseph M. Hood, U.S. District Judge for the Eastern District of Kentucky, sitting by designation