902 F. 2d 33 - Erby v. Reams L
902 F2d 33 Erby v. Reams L
902 F.2d 33
Maurice ERBY, Plaintiff-Appellant,
v.
Jerry REAMS, Lieutenant; L. Marshall; Donald Rugg;
Courtney, Sergeant; Ronald Knoop, Defendants-Appellees.
No. 90-1315.
United States Court of Appeals, Sixth Circuit.
May 8, 1990.
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Before RALPH B. GUY, Jr. and RYAN, Circuit Judges, and ENGEL, Senior Circuit Judge.
ORDER
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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 before the court indicates that the judgment was entered February 9, 1990. The appellant served a Fed.R.Civ.P. 59 motion to alter or amend on February 12, 1990, which was within ten days of entry of judgment. Such motion tolled the appeal period. See Fed.R.App.P. 4(a)(4). A notice of appeal was filed February 28, 1990. Fed.R.App.P. 4(a)(4) provides that a notice of appeal filed before the disposition of a timely Rule 59 motion shall have no effect. 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). The district court denied the Rule 59 motion by order filed March 6, and entered March 8, 1990. No new notice of appeal was filed.
Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.