Unpublished Dispositionthe Stearns & Foster Co., Plaintiff-appellee, Cross-appellant, v. Donald R. Depriest; Robert L. Crawford, Jr., Beaver Damindustries, Inc., Defendants-appellants, Cross-appellees, 774 F.2d 1164 (6th Cir. 1985)

This case is before this panel of the Court upon plaintiff's motion to dismiss the appeals and defendants' motion to dismiss plaintiff's cross-appeal. See Sixth Circuit Rule 9(a).

The district court entered judgment on the jury verdict on May 2, 1984. Defendants timely served a Rule 59(a), Federal Rules of Civil Procedure, motion for a new trial on May 14, 1984, which tolled the appeals period. See Rule 4(a) (4), Federal Rules of Appellate Procedure. Defendants filed a notice of appeal on June 13, 1984, which was docketed in this Court as appeal number 84-3464. Plaintiff's filed a cross-appeal on June 27, 1984, which was docketed in this Court as appeal number 84-3518. The district court entered a judgment on July 19, 1984, granting plaintiff's trial motion for a directed verdict on Counts II and III of the counterclaim. Defendants filed a notice of appeal from this judgment on August 7, 1984, which was docketed in this Court as appeal number 84-3708. On January 28, 1985, the district court denied the motion for a new trial and the parties appealed. Defendants' appeal was docketed in this Court as appeal number 85-3090. Plaintiff's cross-appeal was docketed as appeal number 85-3109. On February 11, 1985, the five appeals were consolidated by this Court for purposes of oral argument.

Plaintiff has moved to dismiss the appeals in case numbers 84-3464, 84-3518 and 84-3708 for lack of jurisdiction. At the time these appeals were filed, the motion for new trial had not been ruled upon. Rule 4(a) (4), Federal Rules of Appellate Procedure, provides that a notice of appeal filed before the disposition of a timely Rule 59(a) 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.' A timely notice of appeal is mandatory and jurisdictional. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982); Browder v. Director, Department of Corrections, 434 U.S. 257 (1978). Therefore, case numbers 84-3464, 84-3518 and 84-3708 must be dismissed since the notices of appeal were premature and of no effect. Defendants' motion to dismiss the cross-appeal in case number 84-3518 is moot since the appeal must be dismissed for lack of jurisdiction.

Accordingly, it is ORDERED that plaintiff's motion to dismiss appeal numbers 84-3464, 84-3518 and 84-3708 is granted. Defendants' motion to dismiss appeal number 84-3518 is denied as moot. Sixth Circuit Rule 9(d) (1).