Sara L. Franzen; Walter J. Siegel; Erma Elaine Tabellion;audrey Serban; Joseph P. Weston; Shirley A.weston; Faye Senter, Plaintiffs-appellees, v. General Electric Capital Corporation, F/k/a General Electriccredit Corporation; General Electric Creditcorporation Office Closing Payment Plan,defendants-appellants, 978 F.2d 1258 (6th Cir. 1992)

ORDER

This matter is before the court on the responses of the defendants and the plaintiffs to this court's show cause order of August 24, 1992.

The defendants appeal the judgment in this action brought under the Employee Retirement Income Security Act of 1974 to determine which employee benefit plan applied to employees who lost their jobs upon shutdown of their office. The judgment in this action bears the date of July 21, 1992, the same date that it was apparently issued. However, the entry of the judgment upon the court's docket was not made until July 23, 1992.

On August 5, 1992, the plaintiffs filed a motion and memorandum in support requesting prejudgment interest in the computation of their benefits. Excluding intervening Saturdays, Sundays, and legal holidays, that motion was made within ten days of the entry of judgment. See Fed. R. Civ. P. 6(a). Further, a motion for prejudgment interest filed within ten days of the judgment may be construed as a motion to alter or amend. Osterneck v. Ernst & Whinney, 489 U.S. 169, 175 (1989); Stern v. Shouldice, 706 F.2d 742, 746 (6th Cir.), cert. denied, 464 U.S. 993 (1983). A notice of appeal filed during the pendency of a motion to alter or amend the judgment is of no effect. See Fed. R. App. P. 4(a) (4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam). A new notice of appeal must be filed after the disposition of such a motion. Id. A motion to amend or alter the judgment filed by any party tolls the time for appeal by other parties. Marrical v. Detroit News, Inc., 805 F.2d 169, 171 (6th Cir. 1986) ((per curiam).

Therefore, it is ORDERED that this appeal is dismissed sua sponte as premature, without prejudice to the defendant's right to perfect a timely appeal upon the district court's resolution of the pending motion for prejudgment interest.