Wendell L. Cruse, Plaintiff-appellant, v. Arlette Brown, et al., Defendants-appellees, 993 F.2d 1546 (6th Cir. 1993)

ORDER

This matter has been referred to a panel of the court for initial consideration of appellate jurisdiction. A review of the record indicates that the judgment of the district court was entered March 10, 1993, and that appellant served a Fed. R. Civ. P. 59 motion for reconsideration on March 15. Appellant filed a notice of appeal on April 1, and the motion for reconsideration was denied by order filed April 5, 1993.

This court lacks jurisdiction in the appeal. The Fed. R. Civ. P. 59 motion was served within 10 days of entry of the decision and tolled the appeal period as provided by Fed. R. App. P. 4(a) (4). See McDowell v. Dynamics Corp. of Am., 931 F.2d 380, 382 (6th Cir. 1991); Moody v. Pepsi-Cola Metro. Bottling Co., 915 F.2d 201, 206 (6th Cir. 1990); Kennedy v. City of Cleveland, 797 F.2d 297, 304-05 (6th Cir. 1986), cert. denied, 479 U.S. 1103 (1987). A notice of appeal filed before disposition of a time-tolling motion shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion. Osterneck v. Ernst & Whinney, 489 U.S. 169, 173-74 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The notice of appeal was filed prior to the ruling on the motion for reconsideration; therefore, this court lacks jurisdiction in this appeal. No new notice of appeal has been filed after the entry of the order denying reconsideration. The notice of appeal was due to be filed by May 5, 1993. Fed. R. App. P. 4(a) (1) and 4(a) (4).

Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 8(a), Rules of the Sixth Circuit.