Unpublished Dispositionsandra Bennett, Plaintiff-appellant, v. Dr. Steve Charles and Mid-south Hospital, Inc., Defendants-appellees, 845 F.2d 325 (6th Cir. 1988)

Before WELLFORD and ALAN E. NORRIS, Circuit Judges, and JULIAN A. COOK, Jr., District Judge.^* 

ORDER

This matter is before the court upon consideration of the appellee's motion to dismiss the appeal for lack of jurisdiction on the basis that the notice of appeal is from a non-appealable order.

A review of the record indicates that judgment of the district court was entered on August 27, 1986, pursuant to the transfer of the civil case to the Eastern District of Tennessee, where the action was to proceed under the single case number originated in the Eastern District of Tennessee. To the extent the judgment of the district court is an order of consolidation, the order is non-appealable. See In Re Master Key Antitrust Litig., 528 F.2d 5, 13 (2d Cir. 1975); Levine v. American Export Indus., Inc., 473 F.2d 1008 (2d Cir. 1973).

Even if the district court judgment entered August 27, 1986, is considered appealable, the timely Fed. R. Civ. P. 59(e) motion renders plaintiff's notice of appeal premature. The Rule 59(e) motion was served on September 1, 1986, and tolled the appeal period. Fed. R. App. P. 41(a) (4). A notice of appeal was filed September 22, 1986. The Rule 59(e) motion was denied on April 6, 1987; no new notice of appeal was filed. Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed before the disposition of a timely Rule (e) motion "shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion." See Griggs v. Provident Consumer Discount Co., 459 U.S. .56 (1982) (per curiam); Martin v. Campbell, 692 F.2d 112, 114-15 (11th Cir. 1982).

It is accordingly ordered that the motion to dismiss be granted and the appeal be and hereby is dismissed. Rule 8, Rules of the Sixth Circuit.