881 F. 2d 1076 - Haynes v. Hudson

Before NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges, and RICHARD B. McQUADE, Jr., District Judge*.

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 April 25, 1989. On May 3, 1989, the district court filed plaintiff's petition for rehearing dated April 29, 1989. This Fed.R.Civ.P. 59(e) motion was brought within ten days of entry of judgment and tolled the appeal period as provided by Fed.R.App.P. 4(a)(4). See Mondrow v. Fountain House, 867 F.2d 798, 799 (3d Cir.1989); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.1988); Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir.1988), cert. denied, 109 S.Ct. 2436 (1989). The May 31, 1989, notice of appeal filed prior to the disposition of the Rule 59(e) motion 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. Osterneck v. Ernst & Whinney, 109 S.Ct. 987, 990 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (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.