872 F. 2d 1024 - Bond v. J Long US

Before NATHANIEL R. JONES and RYAN, Circuit Judges; and GEORGE E. WOODS, District Judge*.

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

Review of the papers before the court indicates that the district court entered an order dismissing appellant's civil rights action for reason of frivolity under 28 U.S.C. Sec. 1915(d) on January 27, 1989. Appellant then filed an "objection" to that order in the district court on February 2, 1989. As that act took place within ten days of the district court's entry of its order, as computed under Fed.R.Civ.P. 6(a), appellant's "objections" constituted a motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e). That motion tolled the time for filing a notice of appeal. Fed.R.App.P. 4(a)(4). The district court had not ruled on the motion to alter or amend when appellant filed a notice of appeal on March 27, 1989.

This court does not have jurisdiction over the appeal. Fed.R.App.P. 4(a)(4) specifies that a notice of appeal filed prior to the disposition of a timely motion pursuant to Fed.R.Civ.P. 59(e) shall have no effect. Rather, appellant must file a new notice of appeal within the prescribed time after the entry of the order ruling on the motion to alter or amend. A timely notice of appeal is mandatory and jurisdictional. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam); Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978).

Accordingly, it is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.