Unpublished Dispositionkhalil-ullah Al-muhaymin, Plaintiff-appellant,bilad Furqan, et al., Plaintiffs, v. Charles Butturini, et al., Defendants-appellees, 902 F.2d 32 (6th Cir. 1990)

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U.S. Court of Appeals for the Sixth Circuit - 902 F.2d 32 (6th Cir. 1990)

May 10, 1990


Before BOYCE F. MARTIN, Jr. and BOGGS, Circuit Judges, and BARBARA K. HACKETT, District Judge* .

ORDER

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

A review of the record before the court indicates that the judgment was entered February 14, 1990. The appellant served a Fed. R. Civ. P. 59 motion to alter or amend on February 14, 1990, which was within ten days of entry of judgment. Such motion tolled the appeal period. See Fed. R. App. P. 4(a) (4). A notice of appeal was filed March 19, 1990. Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed before the disposition of a timely Rule 59 motion shall have no effect. A timely notice of appeal is mandatory and jurisdictional. Osterneck v. Ernst & Whinney, 109 S. Ct. 987, 990 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The district court has not ruled on the Rule 59 motion.

Accordingly, it is ORDERED that the appeal be, and hereby is, dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.

 *

The Honorable Barbara K. Hackett, U.S. District Judge for the Eastern District of Michigan, sitting by designation