933 F. 2d 1007 - Creager v. H Dallman

Before RALPH B. GUY, Jr. and RYAN, Circuit Judges, and JOINER, Senior 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 documents before the court indicates that the judgment of the district court was entered on February 28, 1991. Petitioner served a motion for reconsideration on March 7, 1991. Next, petitioner filed a notice of appeal on March 19, 1991, before the district court ruled on petitioner's motion for reconsideration.

Generally, a motion for reconsideration of the merits of a decision served within 10 days of judgment is construed as a Fed.R.Civ.P. 59(e) motion to alter or amend the judgment White v. New Hampshire Dep't of Employment Sec., 455 U.S. 445 451 (1982). A timely Fed.R.Civ.P. 59(e) motion tolls the appeal period. Marrical v. Detroit News, Inc., 805 F.2d 169, 171 (6th Cir.1986) (per curiam). Moreover, a notice of appeal filed while a timely Fed.R.Civ.P. 59(e) motion is pending has no effect. Fed.R.App.P. 4(a)(4); Osterneck v. Ernst & Whinney, 489 U.S. 169, 173-74 (1989). A timely notice of appeal is mandatory and jurisdictional. Osterneck, 489 U.S. at 173-74.

Here, petitioner's notice of appeal filed March 19, 1991, is premature. Petitioner's motion for reconsideration was served within 10 days of the district court's judgment, tolling the appeals period. Petitioner's notice of appeal, filed before the district court ruled on the motion for reconsideration, has no effect. Therefore, this court has no jurisdiction over this appeal.

Accordingly, this appeal is dismissed for lack of jurisdiction. Rule 8(a), Rules of the Sixth Circuit.