Unpublished Disposition(the Decision of the Court is Referenced in a "table of Decisions Without Reported Opinions" Appearing in the Federal Reporter.)teamsters, Chauffers, Warehousemen and Helpers Local Unionno. 486, Plaintiff-appellant, v. Zaiger Beverage Company, Defendant-appellee, 780 F.2d 1023 (6th Cir. 1985)Annotate this Case
BEFORE: MARTIN, JONES and CONTIE, Circuit Judges.
This appeal has been referred to this panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit.
A review of the record indicates that the judgment of the district court was filed on September 26, 1984. A motion for new trial or, in the alternative, to amend the judgment was filed on October 5, 1984, by the appellant. No certificate of service was included with the motion. The appellee's answer to the motion stated that the Rule 59(e), Federal Rules of Civil Procedure, motion was served out of time and enclosed a copy of the October 9, 1984, letter transmitting the motion to him. The appellee miscalculated the due date of the motion as October 5, 1984. The due date of service of the motion was October 9, 1984. Rules 6(a) and 59(e), Federal Rules of Civil Procedure. The motion served on October 9, 1984, tolled the appeals period. Rule 4(a) (4), Federal Rules of Appellate Procedure. At the time the October 24, 1984, notice of appeal was filed, the motion for new trial or, in the alternative, to amend the judgment 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(e) 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). The Rule 59(e), Federal Rules of Civil Procedure, motion was denied on October 26, 1984.
It is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction due to a premature notice of appeal. Rule 9(d) (1), Rules of the Sixth Circuit.