Sylvia S. Toney v. Hampton Training School for Nurses, a Virginia Corporation, D/B/A Hampton General Hospital, and Jennifer Greenwell

810 F.2d 195, 1987 U.S. App. LEXIS 1125, 1987 WL 36231

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 20, 1987
• Docket: 86-3654
• Status: Unpublished

Opinion

810 F.2d 195

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Sylvia S. TONEY, Plaintiff-Appellant,
v.
HAMPTON TRAINING SCHOOL FOR NURSES, a Virginia Corporation,
d/b/a Hampton General Hospital, Defendant-Appellee,
and
Jennifer Greenwell, Defendant.

No. 86-3654.

United States Court of Appeals, Fourth Circuit.

Submitted Dec. 16, 1986.
Decided Jan. 20, 1987.

Before HALL, CHAPMAN and WILKINS, Circuit Judges.

Joseph T. Buxton, Buxton & Lasris, P.C., for appellant.

Christine Hope Perdue, Joseph D. McCluskey, Hunton & Williams, for appellee.

PER CURIAM:

Judgment was entered against Sylvia Toney on October 14, 1986. Toney had until October 28th to serve a timely motion for a new trial. See Fed.R.Civ.P. 59(b) (motion for new trial must be served within ten days of judgment); Fed.R.Civ.P. 6(a) (Saturdays and Sundays are excluded from computation). Toney served and filed a timely Rule 59 motion. Before disposition of this motion, however, Toney filed a notice of appeal. The appellee filed a motion to dismiss the appeal because a notice of appeal filed before the disposition of a Rule 59 motion has no effect. See Fed.R.App.P. 4(a)(4).

This Court has no jurisdiction to hear the appeal, and appellee's motion to dismiss is granted. The filing of a timely Rule 59 motion nullifies a notice of appeal which is filed before disposition of the motion. The language of Rule 4 is clear, and the Supreme Court has confirmed this clear interpretation of the Rule. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument, grant appellee's motion to dismiss, and dismiss the appeal. We decline to award attorney's fees or costs under Fed.R.App.P. 38.

DISMISSED.