Unpublished Dispositioncharles Bassett, Plaintiff-appellant, v. Sterling Drug, Inc.; Hilton Davis Chemical Co., Division,defendants-appellees, 770 F.2d 165 (6th Cir. 1985)

This cause is before the Court pursuant to Rule 9(a), Rules of the Sixth Circuit.

This Ohio plaintiff, represented by counsel, seeks to appeal from a district court judgment dismissing his civil rights complaint alleging age discrimination in violation of federal and state law. After the entry on January 20, 1984 of the district court's opinion and order granting defendants' motion to dismiss, the plaintiff filed a motion to reconsider the opinion and order which was served upon the defendants on January 24, 1984. Prior to the entry of the district court's order on April 6, 1984 denying plaintiff's motion to reconsider, the plaintiff filed his notice of appeal on February 17, 1984. Under these circumstances, it is clear that this Court does not have jurisdiction over this appeal because the plaintiff's notice of appeal is a nullity.

Plaintiff's motion to reconsider is construed as a motion to alter or amend under Rule 59(e), Federal Rules of Civil Procedure. Huff v. Metropolitan Life Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982). Since it was served within ten days after the entry of the district court's opinion and order dismissing plaintiff's action, it tolled the appeal time and caused plaintiff's notice of appeal filed before entry of the order disposing of the motion to be a nullity under Rule 4(a) (4), Federal Rules of Appellate Procedure. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam).

It is, accordingly, ORDERED that this appeal be and hereby is dismissed for lack of jurisdiction pursuant to Rule 9(d) (1), Rules of the Sixth Circuit.