765 F. 2d 146 - John Shimman v. Terry Oliver Grothaus
765 F2d 146 John Shimman v. Terry Oliver Grothaus
765 F.2d 146
JOHN C. SHIMMAN, PLAINTIFF-APPELLANT,
v.
TERRY OLIVER GROTHAUS; JAMES OLIVER GROTHAUS; JOHN FRANK;
INTERNATIONAL UNION OF OPERATING ENGINEERS; JOHN
DOE; RICHARD DOE, DEFENDANTS-APPELLEES.
NO. 85-3018
United States Court of Appeals, Sixth Circuit.
5/13/85
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
ORDER
BEFORE: KEITH, MARTIN AND JONES, Circuit Judges.
Advertisement
This matter is before the Court upon appellant's motion to determine jurisdiction, appellees' motion to dismiss, appellant's memorandum in opposition and appellees' reply.
On October 24, 1984, the district court vacated its award of attorney fees to appellant pursuant to the mandate of this Court. Shimman v. International Union of Operating Engineers, Local 18, 744 F.2d 1226 (6th Cir. 1984) (en banc), cert. denied, 53 U.S.L.W. 3587, (U.S. Feb. 19, 1985) (No. 84-1043). On November 2, 1984, appellant served a motion to alter or amend the judgment and, on December 24, 1984, he filed the instant appeal.
If timely filed, a motion to alter or amend a judgment under Rule 59(e), Federal Rules of Civil Procedure, tolls the time period for filing a notice of appeal until the motion is granted or denied. Peake v. First Nat'l Bank & Trust Co. of Marquette, 717 F.2d 1016, 1019 (6th Cir. 1983). After the district court denied the motion on February 13, 1985, appellant had 30 days to file a notice of appeal from the October 24, 1984 order. Smith v. Hudson 600 F.2d 60, 62 (6th Cir.) cert. dismissed, 444 U.S. 986 (1979). The requirements for filing a notice of appeal under Rule 4(a), Federal Rules of Appellate Procedure are both mandatory and jurisdictional. Moorer v. Griffin, 575 F.2d 87, 89 (6th Cir. 1978). Since appellant filed his notice of appeal before the district court disposed of his motion, the notice was premature and has no effect. Rule 4(a)(4), Federal Rules of Appellate Procedure.
Accordingly, it is ORDERED that appellees' motion to dismiss be and hereby is granted. It is further ORDERED that appellant's motion to determine jurisdiction is denied.