Unpublished Dispositionpurex Corporation, Plaintiff-appellant,dial Corporation, Plaintiff, v. Willis Day Properties, Inc., Able Warehousing Anddistributing Company, Inc., Defendants-appellees, 888 F.2d 1392 (6th Cir. 1989)

The plaintiff appeals the opinion and order of the district court granting the defendant's motion to enforce the settlement agreement in this action for damages to personal property and for clean-up expenses caused by a fire. The district court entered its opinion on September 19, 1989. Within ten days, as computed pursuant to Fed. R. Civ. P. 6(a), the defendant filed a motion to clarify the opinion to require the plaintiff to sign the release appended to its motion. The plaintiff filed an opposition to this motion on October 11 and suggested an alternate release. The motion and response are attached. Prior to the disposition of the motion to clarify, the plaintiff filed its notice of appeal.

A notice of appeal filed prior to the disposition of a timely motion to alter or amend the judgment is of no effect. Fed. R. App. P. 4(a) (4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam); Peake v. First National Bank & Trust Co., 717 F.2d 1016, 1019 (6th Cir. 1983). A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion. Id. Although a motion to clarify does not necessarily toll the time for appeal, where such a motion actually seeks an amendment of the judgment and is filed within ten days of the judgment it may be considered to be a time-tolling motion. See e.g. Cosgrove v. Smith, 697 F.2d 1125 (D.C. Cir. 1983).

It is therefore ORDERED that this appeal is dismissed sua sponte for lack of jurisdiction without prejudice to a timely appeal following disposition of the pending motion and/or entry of final judgment. Rule 9(b), Local Rules.