Smedley v. City of Cincinnati, 890 F.2d 417 (6th Cir. 1989)

ORDER

Four of the defendants in this action appeal an order of the district court denying the plaintiff's motion to reopen his case and also directing the defendants to present reasons why sanctions should not be imposed in the amount of the plaintiff's costs and attorney's fees. This order, dated October 3, 1989, was entered upon the court's docket on October 4. On October 13, the plaintiff timely moved to amend the judgment pursuant to Fed. R. Civ. P. 52(b). On November 2, prior to disposition of the plaintiff's motion, the defendants filed a notice of appeal. The defendants' motion for relief from the final order, filed on October 20, was also pending in the district court when the notice of appeal was filed. These motions remain outstanding in the district court.

A notice of appeal filed prior to disposition of a motion to amend findings under Fed. R. Civ. P. 52(b) is of no effect. Fed. R. App. P. 4(a) (4). Such a time-tolling motion filed by one party tolls the time for appeal for all parties. Marrical v. Detroit News Inc., 805 F.2d 169, 171 (6th Cir. 1986) (per curiam). A new notice of appeal must be filed from the entry of the order disposing of the motion. Further, the order of which defendants seek review is also not final as to the imposition of sanctions. An order imposing attorney's fees and costs is not appealable where the amount to be awarded is not yet determined. Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1104-05 (6th Cir. 1985); Morgan v. Union Metal Manufacturing, 757 F.2d 792, 795 (6th Cir. 1985); see also Gates v. Central Teamsters Pension Fund, 788 F.2d 1341 (8th Cir. 1986). The district court's order permitted the defendants to present reasons why such sanctions should not be imposed.

It is therefore ORDERED that this appeal is dismissed sua sponte without prejudice to the defendants' right to perfect a new timely appeal following disposition of the pending motion under Fed. R. Civ. P. 52(b) and/or the entry of a final judgment. Rule 9(b), Local Rules of the Sixth Circuit.