908 F. 2d 973 - Forrest v. Reynolds
908 F2d 973 Forrest v. Reynolds
908 F.2d 973
Edward FORREST, Plaintiff-Appellant,
v.
Jeff REYNOLDS, Jim Dickman, Clyde Wilson, Defendants-Appellees.
No. 90-5283.
United States Court of Appeals, Sixth Circuit.
July 30, 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 KRUPANSKY and BOGGS, Circuit Judges, and CELEBREZZE, 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 documents before the court indicates that the final order was entered November 28, 1989. A motion to reconsider or motion for leave to appeal was served on December 5, 1989, and filed on December 6, 1989. Such motions were within 10 days of entry of judgment as computed pursuant to Fed.R.Civ.P. 6(a). Such motion to reconsider tolled the appeal period. See Fed.R.App.P. 4(a); Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir.1988), cert. denied, 109 S.Ct. 2436 (1989). The notice of appeal and motion to reconsider were filed at the same time. 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, 489 U.S. 169 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The motion was denied by marginal order entered December 8, 1989. In this case, the notice of appeal and motion to reconsider were filed simultaneously. Plaintiff did not file a new notice of appeal after disposition of his timely motion to reconsider, thus, this court lacks jurisdiction.
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.