Marcia Haddad; Edwin A. Haddad, Plaintiffs-appellants, v. Jerome Z. Ginsburg; Plaza 71 Associates, Inc., an Ohiocorporation, Defendants-appellees, 953 F.2d 1384 (6th Cir. 1992)

ORDER

The plaintiffs appeal summary judgment for the defendants and dismissal of this action for breach of contract. The district court entered its judgment on November 20, 1991. On November 21, 1991, the plaintiffs filed a motion for reconsideration and/or to vacate the summary judgment. While that motion was pending, the plaintiffs filed a notice of appeal on December 19, 1991. The motion remains pending.

Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed during the pendency of a timely motion to alter or amend judgment is of no effect. See also Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam). This court has held that a motion to reconsider, filed within ten days of the judgment is construed as a motion to alter or amend for purposes of tolling the time for appeal. Moody v. Pepsi-Cola Metro Bottling Co., 915 F.2d 201, 206 (6th Cir. 1990). Therefore, the plaintiffs' notice of appeal in the instant case is premature.

Therefore, it is ORDERED that this appeal is dismissed sua sponte for lack of jurisdiction. This dismissal is without prejudice to the plaintiffs' right to perfect a new appeal if necessary within the proper appeal period upon the district court's disposition of the motion pending before it.