United States v. Garth Guy

953 F.2d 1385, 1992 WL 21338

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 4, 1992
• Docket: 91-4138
• Status: Unpublished

Opinion

953 F.2d 1385

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Garth GUY, Defendant-Appellant.

No. 91-4138.

United States Court of Appeals, Sixth Circuit.

Feb. 4, 1992.

Before NATHANIEL R. JONES and DAVID A. NELSON, Circuit Judges, and LIVELY, Senior Circuit Judge.

ORDER

The defendant appeals judgment for the United States in this action to recover a tax refund previously paid to the defendant. The district court granted the plaintiff summary judgment on September 25, 1991, and also entered judgment on that date. However, within ten days the United States moved to amend the judgment to specify the amount owed. While that motion was pending, the defendant filed his notice of appeal. Subsequently, the district court entered an amended judgment providing for the amount of judgment and interest. In a motion to vacate briefing, the defendant concedes this appeal was prematurely filed. However, he has not yet filed a new notice of appeal. In response to the motion to vacate briefing, the government argues that this court lacks jurisdiction because the appeal was prematurely filed.

A timely motion to alter or amend the judgment tolls the time for an appeal. Fed.R.App.P. 4(a)(4). A notice of appeal which is filed during the pendency of such a motion is of no effect. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam). A new notice of appeal must be filed in the district court within the appropriate appeal period commencing with the district court's disposition of the motion. Id. Therefore, this court lacks jurisdiction in this appeal.

It is ORDERED that this appeal is dismissed sua sponte for lack of jurisdiction without prejudice to the perfection of a timely appeal from the amended judgment.