Todd Mines v. John Gluch

872 F.2d 1026, 1989 U.S. App. LEXIS 4343, 1989 WL 34117

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 3, 1989
• Docket: 88-2246
• Status: Unpublished

Opinion

872 F.2d 1026

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Todd MINES, Petitioner-Appellant,
v.
John GLUCH, Respondent-Appellee.

No. 88-2246.

United States Court of Appeals, Sixth Circuit.

April 3, 1989.

Before ENGEL, Chief Judge, BOGGS, Circuit Judge, and THOMAS A. BALLANTINE, 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 November 11, 1988. On November 16, 1988, the appellant served a Fed.R.Civ.P. 60 motion for relief from the judgment. That motion was filed and served within ten days after entry of judgment as computed according to Fed.R.Civ.P. 6(a) and should be treated as a 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, 479 U.S. 930 (1986); Cosgrove v. Smith, 697 F.2d 1125, 1127-28 (D.C.Cir.1983); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 40-41 (2d Cir.1982); Huff v. Metropolitan Life Ins. Co., 675 F.2d 119, 122 (6th Cir.1982). Accordingly, the timely Fed.R.Civ.P. 59(e) tolled the appeal period as provided by Fed.R.App.P. 4(a)(4). Relief was denied by order filed on December 28, 1988. The November 21, 1988, notice of appeal 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, 478 U.S. 251 (1986) (per curiam); 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. Rule 9(b)(1), Rules of the Sixth Circuit.

* The Honorable Thomas A. Ballantine, Jr., U.S. District Judge for the Western District of Kentucky, sitting by designation