Spearman v. Roth

93 F. App'x 809

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 24, 2004
• Docket: No. 02-2345
• Status: Published

Opinion

ORDER

This matter is before the court upon consideration of the orders filed in the district court after the appellant filed this appeal.

A review of the documents before the court indicates that the decision of the district court was entered September 24, 2002. A Fed.R.Civ.P. 59(e) motion seeking reconsideration was filed on September 30, 2002. A separate judgment as required by Fed.R.Civ.P. 58(a)(1) was entered on October 7, 2002. Appellant filed a motion for relief from the judgment on October 15, 2002. The September 30, 2002 and October 15, 2002 motions tolled the appeal period. See Fed. R.App. P. 4(a)(4). A notice of appeal was filed on October 31, 2002 from the district court’s judgment (appeal No. 02-2345). By order entered June 10, 2003, the district court denied the time-tolling motions but it rescinded its prior decision granting a motion for summary judgment, and it dismissed the complaint for failure to exhaust administrative remedies. A new judgment was entered on June 10, 2003. The appellant filed a time-tolling motion for reconsideration of the June 10, 2003 decision on June 13, 2003. See Fed. R.App. P. 4(a)(4). Reconsideration was denied by order entered June 24, 2003. No new notice of appeal was filed in the district court.

This court lacks jurisdiction over appeal No. 02-2345. The decision from which that appeal was taken has been vacated by the district court, and a new judgment was entered on June 10, 2003. No notice of appeal was filed in the district court from the decision entered June 10, 2003 or the June 24, 2003 order denying the motion for reconsideration. However, the appellant filed a supplemental brief in this court on July 22, 2003 addressing the order of the district court rescinding its first judgment and entering a new judgment. The supplemental brief was received and filed in this court within the time period for filing a notice of appeal, and it evinced the appellant’s intent to appeal the district court’s June 10, 2003 judgment. See Fed. R.App. P. 3(c), 4(a), 4(d), and 26(a).

Accordingly, it is ordered that appeal No. 02-2345 is dismissed.

It is further ordered that the clerk of this court forward a copy of the July 22, 2003 supplemental brief to the district court for filing as a notice of appeal as provided by Fed. R.App. P. 4(d). Once it is filed and resubmitted by the district court as provided by Fed. R.App. P. 3(d), a new appeal number will be assigned to the case.