Sylvia S. Toney, Plaintiff-appellant, v. Hampton Training School for Nurses, a Virginia Corporation,d/b/a Hampton General Hospital, Defendant-appellee,andjennifer Greenwell, Defendant, 810 F.2d 195 (4th Cir. 1987)

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U.S. Court of Appeals for the Fourth Circuit - 810 F.2d 195 (4th Cir. 1987)

Submitted Dec. 16, 1986. Decided Jan. 20, 1987

Before HALL, CHAPMAN and WILKINS, Circuit Judges.

Joseph T. Buxton, Buxton & Lasris, P.C., for appellant.

Christine Hope Perdue, Joseph D. McCluskey, Hunton & Williams, for appellee.


Judgment was entered against Sylvia Toney on October 14, 1986. Toney had until October 28th to serve a timely motion for a new trial. See Fed. R. Civ. P. 59(b) (motion for new trial must be served within ten days of judgment); Fed. R. Civ. P. 6(a) (Saturdays and Sundays are excluded from computation). Toney served and filed a timely Rule 59 motion. Before disposition of this motion, however, Toney filed a notice of appeal. The appellee filed a motion to dismiss the appeal because a notice of appeal filed before the disposition of a Rule 59 motion has no effect. See Fed. R. App. P. 4(a) (4).

This Court has no jurisdiction to hear the appeal, and appellee's motion to dismiss is granted. The filing of a timely Rule 59 motion nullifies a notice of appeal which is filed before disposition of the motion. The language of Rule 4 is clear, and the Supreme Court has confirmed this clear interpretation of the Rule. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument, grant appellee's motion to dismiss, and dismiss the appeal. We decline to award attorney's fees or costs under Fed. R. App. P. 38.