Lincoln National Life Insurance Company, Plaintiff-appellee, v. Venture Industries Corporation, Defendant-appellant, 891 F.2d 291 (6th Cir. 1989)

ORDER

The defendant has filed a notice of appeal from judgment in favor of the plaintiff in this diversity action relating to an insurance contract. The district court entered its judgment on September 18, 1989, having amended its previous memorandum and order upon correspondence from the plaintiff. On September 26, 1989, within ten days of the judgment, the defendant filed a motion for reconsideration of the judgment. A response in opposition was filed. On October 16, 1989, before disposition of the motion to reconsider, the defendant filed a notice of appeal. An order directing the defendant to show cause why this appeal should not be dismissed was entered on October 27, 1989. The defendant has not responded. The motion to reconsider is still pending before the district court.

A motion to reconsider, if served within ten days of the judgment, may toll the time for appeal pursuant to Fed. R. App. P. 4(a) (4). Kennedy v. City of Cleveland, 797 F.2d 297, 304-05 (6th Cir. 1986), cert. denied, 479 U.S. 1103 (1987); Denley v. Shearson/American Express, Inc., 733 F.2d 39 (1984). A notice of appeal filed prior to the disposition of a time-tolling motion shall be of no effect, and a new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion. Fed. R. App. P. 4(a) (4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam).

It is therefore ORDERED that this appeal is dismissed sua sponte for lack of jurisdiction without prejudice to the defendant's right to perfect a timely appeal following disposition of the motion to reconsider. Rule 9(b), Local Rules of the Sixth Circuit.