Unpublished Dispositionkenneth L. Thompson, Plaintiff-appellant, v. Olympic Stain Company and John R. Parmenter, Defendants-appellees, 817 F.2d 757 (6th Cir. 1987)

Before ENGEL and BOGGS, Circuit Judges and HOLSCHUH, District Judge.^* 

ORDER

These two appeals, docketed in this court as Case Nos. 87-5101 and 87-5150, arise from a judgment of the district court which dismissed appellant's employment discrimination and civil rights action and a separate order of the same district court which denied appellant's motion for a rehearing.

On November 19, 1986, the district court entered a judgment dismissing appellant's action. Within ten days of the entry of the judgment, appellant served a "motion for rehearing/notice of appeal" on November 22, 1986. Service of a timely motion for rehearing, Rule 59, Federal Rules of Civil Procedure, tolls the time in which a notice of appeal must be filed until the entry of an order ruling on the motion. Rule 4(a) (4), Federal Rules of Appellate Procedure. A notice of appeal filed before the disposition of the motion is of no effect. Id. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982); Myers v. Ace Hardware, Inc., 777 F.2d 1099 (6th Cir. 1985). Because appellant's initial notice of appeal, Case No. 87-5101, was filed on January 26, 1986, 44 days before the district court denied appellant's motion on January 9, 1987, this court is without jurisdiction to entertain appellant's initial appeal.

However, appellant's second appeal, case No. 87-5150, is jurisdictionally valid. The time for appeal from the January 9, 1987 order expired 30 days after the entry of the order, or on February 9, 1987. Rule 4(a), Federal Rules of Appellate Procedure. Appellant's notice of appeal was filed on February 2, 1987, one week prior to the 30 day time limitation. Accordingly, this court has jurisdiction to entertain appellant's second appeal, Case No. 87-5150.

Based on the reasoning discussed above, Case No. 87-5101 is hereby ordered dismissed.