Unpublished Dispositiontarik Ali Bey, Aka, Warren L. Williams, Aka Russell Sydnor,aka Fathi Mahmoud, Plaintiff-appellant, v. Perry B. Jackson, Jr.; Chester Zembra; Denise Cameron;michael C. Hennenberg, Defendants-appellees, 816 F.2d 678 (6th Cir. 1987)

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US Court of Appeals for the Sixth Circuit - 816 F.2d 678 (6th Cir. 1987) April 17, 1987

Before MARTIN, WELLFORD and MILBURN, Circuit Judges.


Appellant has responded to this Court's order to show cause why his appeals, Docket Nos. 87-3010 and 87-3118, should not be dismissed as prematurely and untimely filed, respectively.

On November 4, 1986, the district court entered a judgment dismissing appellant's action. Appellant on November 16, 1986, timely served a motion to reconsider. A timely served motion to reconsider tolls the time within which to file a notice of appeal until entry of the order granting or denying the motion. Rule 4(a) (4), Federal Rules of Civil Procedure.

On December 3, 1986, prior to entry of an order granting or denying his motion, the appellant filed an initial notice of appeal, docketed in this Court as Case No. 87-3010. A notice of appeal filed before the disposition of a motion to reconsider shall have no effect. Rule 4(a) (4), Rules of Appellate Procedure; Myers v. Ace Hardware, 777 F.2d 1099 (6th Cir. 1985).

Because appellant's first notice of appeal is premature, this Court lacks jurisdiction to entertain Case No. 87-3010. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982); Myers v. Ace Hardware, 777 F.2d 1099 (6th Cir. 1985).

On December 9, 1986, the district court entered an order denying appellant's motion to reconsider. Notice of appeal from that order was due within thirty days of its entry--January 8, 1987. Appellant's second notice of appeal, docketed as 87-3118, was not filed until February 4, 1987, twenty seven days late. Because appellant's second notice of appeal was filed in an untimely fashion, this Court lacks jurisdiction to entertain Case No. 87-3118. Peake v. First National Bank & Trust Co., 717 F.2d 1016 (6th Cir. 1983). Accordingly, both appeals, docket numbers 87-3010 and 87-3118, are dismissed. Rule 9(b) (1), Rules of the Sixth Circuit.