Ping L. Ku, Plaintiff Appellant, v. Hoechst Celanese Corporation, Defendant Appellee, 25 F.3d 1040 (4th Cir. 1994)

Ping L. Ku appeals from the district court order granting summary judgment in favor of Defendant. We dismiss.

Ku filed his notice of appeal within the thirty days allowed by Fed. R. App. P. 4. However, he filed a motion within ten days of the final order requesting the order be vacated. Thus, his notice of appeal was without effect. Fed. R. App. P. 4(a) (4).

The district court has not acted on the motion, and counsel for Defendant has not responded to the motion, even though the motion was filed and served in September 1993. After the district court acts on the motion, Ku's already-filed notice of appeal will be sufficient to preserve his appeal of the summary judgment order. However, if Ku desires to appeal the post-judgment order also, he must amend his notice of appeal. Fed. R. App. P. 4(a) (4).

Because Ku's notice of appeal is currently without effect, we dismiss his appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

DISMISSED.