986 F. 2d 1414 - 24 Fed.r.serv.3d 1480
986 F2d 1414 24 Fed.r.serv.3d 1480
986 F.2d 1414
24 Fed.R.Serv.3d 1480
Martin J. REILLY, Plaintiff-Appellant,
v.
David G. GRAY, Individually; Westall, Gray, Kimel and
Connolly, a professional association in the
practice of law, Defendants-Appellees.
No. 92-1692.
United States Court of Appeals,
Fourth Circuit.
Submitted: January 8, 1993
Decided: February 12, 1993
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Richard L. Voorhees, Chief District Judge. (CA-91-161-1)
Martin J. Reilly, Appellant Pro Se.
David G. Gray, Jr., Westall, Gray, Kimel & Connolly, Asheville, North Carolina, for Appellees.
W.D.N.C.
DISMISSED.
Before PHILLIPS, MURNAGHAN, and LUTTIG, Circuit Judges.
PER CURIAM:
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Martin J. Reilly noted this appeal from the district court's order pending disposition of a timely Fed. R. Civ. P. 59(e) motion. We dismiss the appeal as premature.
Under Fed. R. App. P. 4(a)(4), a notice of appeal filed before disposition of a timely Fed. R. Civ. P. 50(b), 52(b), or 59 motion is without effect, and a new notice of appeal must be filed within the appeal period measured from entry of the order disposing of the motion. This Court construes a motion served within ten days of entry of judgment which calls into question the correctness of that judgment as a Rule 59(e) motion, however the motion may be formally styled. Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978). Under Dove and Fed. R. App. P. 4(a)(4), Appellant's post-judgment motion, styled as a motion to strike, invalidated the notice of appeal and requires dismissal of this appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). Appellant may file a new notice of appeal within the appeal period measured from disposition of the Rule 59 motion.
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
DISMISSED