Unpublished Dispositiongary Lavergis Rodger, Petitioner-appellant, v. J.j. Clark, Warden, J. Michael Quinlan, Director, U.s.bureau of Prisons, Respondents-appellees, 911 F.2d 733 (6th Cir. 1990)

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 indicates that the judgment of the district court was entered May 3, 1990. A motion for reconsideration was served on May 7, 1990, which was within ten days after entry of the decision and is properly treated as a Fed. R. Civ. P. 59(e) time-tolling motion. See Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir. 1988), cert. denied, 109 S. Ct. 2436 (1989); Kennedy v. City of Cleveland, 797 F.2d 297, 305 (6th Cir. 1986), cert. denied, 479 U.S. 1103 (1987); Huff v. Metropolitan Life Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982). A notice of appeal dated May 9, 1990, was filed May 10, 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, 489 U.S. 169 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). To protect his contention, appellant must file a new notice of appeal in timely fashion after entry of the district court's ruling on the motion for reconsideration. Reconsideration was denied by order entered May 11, 1990. No new notice of appeal was filed thereafter to afford this court jurisdiction.

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