Lawrence Hill, Plaintiff-appellant, v. Ronald C. Marshall; T.l. Morris; Lt. Wente, Defendants-appellees, 810 F.2d 201 (6th Cir. 1986)Annotate this Case
Nov. 21, 1986
Before KEITH, MERRITT and WELLFORD, Circuit Judges.
This matter is before the Court on motion of the appellees to dismiss the appeal based on the premature filing of a notice of appeal. This matter is also before the Court on motion of the appellant to have the transcript provided at government expense.
It appears from the district court docket sheet that on July 10, 1986, judgment was entered in accordance with the jury verdict finding in favor of all the defendants. On July 22, 1986, the appellant filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial pursuant to Rule 50 and 59 of the Federal Rules of Civil Procedure. The certificate of service on this pleading reveals that it was served on opposing counsel on Monday, July 21, 1986. Since intervening Saturdays and Sundays are excluded in the computation when the period of time allowed is less than eleven (11) days, the appellant's motion for judgment notwithstanding the verdict, or in the alternative, for a new trial is timely. See Rules 6(a), 50(b) and 59(b), Federal Rules of Civil Procedure; Cf. Ohio Inns, Inc. v. NYE, 542 F.2d 673 (6th Cir. 1976).
Prior to the disposition of this motion for judgment notwithstanding the verdict, or in the alternative, for a new trial, however, the appellant filed a notice of appeal in the district court on August 8, 1986. To the extent that this notice of appeal was filed before the disposition of the motion for judgment notwithstanding the verdict, or in the alternative, for a new trial, the notice of appeal has no effect and a new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion. See Rule 4(a) (4), Federal Rules of Appellate Procedure. (The appellant has filed a new notice of appeal dated October 17, 1986, and docketed in our Court as File No. 86-3987.) The notice of appeal filed August 8, 1986, is therefore premature and this Court lacks jurisdiction to consider this appeal in File No. 86-3788. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982); Portis v. Harris County, Texas, 632 F.2d 486 (5th Cir. 1982); Williams v. Bolger, 633 F.2d 410 (5th Cir. 1980).
The appellant's motion to have a transcript of the proceedings produced at government expense is denied as moot since this order is dismissing the appeal in File No. 86-3788. It is also significant to point out as it applies to this motion to produce transcript at government expense that it does not appear the district court has been given the opportunity to certify that the appeal is not frivolous (but presents a substantial question) as required by 28 U.S.C. Section 753(f). See also King v. Carmichael, 268 F.2d 305 (6th Cir. 1959), cert. denied 361 U.S. 968 (1960); Morrell v. United States, 290 F.2d 208 (9th Cir. 1961).
Accordingly, it is ORDERED that the appellees' motion to dismiss the appeal in File No. 86-3788 be granted and the motion to produce transcript at government expense be denied as moot.