Unpublished Dispositionvincent Brevard, Plaintiff-appellant, v. Sheriff Jack Owens, Defendant-appellee, 826 F.2d 1062 (6th Cir. 1987)

Annotate this Case
US Court of Appeals for the Sixth Circuit - 826 F.2d 1062 (6th Cir. 1987)

Aug. 12, 1987


ORDER

Before CORNELIA G. KENNEDY, MILBURN and ALAN E. NORRIS; 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 dismissing the civil rights action was entered February 23, 1987. A Rule 59, Federal Rules of Civil Procedure, motion for reconsideration was filed on March 5, 1987. The motion was not served upon opposing counsel. However, the defendants were not served with process by the district court and are not considered parties to the action. Patchick v. Kensington Publishing Corp., 743 F.2d 675 (9th Cir. 1984); DeTore v. Local #245, Jersey City Public Employees Union, 615 F.2d 980, 982 n.2 (3d Cir. 1980); United States v. Studivant, 529 F.2d 673, 674 n.2 (3d Cir. 1976). The motion for reconsideration was filed within the ten-day period provided by Rule 59(e), Federal Rules of Civil Procedure, as computed by Rule 6(a), Federal Rules of Civil Procedure, and tolled the appeals period. Rule 4(a) (4), Federal Rules of Appellate Procedure. The notice of appeal was filed on March 25, 1987, and reconsideration was denied by order filed March 31, 1987.

At the time the March 25, 1987, notice of appeal was filed, the motion for reconsideration 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); Browder v. Director, Department of Corrections, 434 U.S. 257 (1978).

It is ORDERED that the appeal be dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.