Unpublished Dispositionmyra L. Hofstetter, Plaintiff-appellee, v. Donald S. Fletcher; Evelyn Johnson; and Thefletcher-mckelvie Group, Defendants-appellants,fletcher Insurance Assoc.; Neil Christal, Jr.; and the Newyork Life Ins. Co., Defendants, 831 F.2d 295 (6th Cir. 1987)

ORDER

The defendants appeal from an order entering judgment for the plaintiff (87-3317) and from orders of remittitur (87-3502) in this fraud action. The plaintiff now moves to dismiss on grounds that there is no final order for purposes of 28 U.S.C. § 1291. The defendants have not responded to the motion.

In accordance with a jury verdict, the district court entered judgment against the defendants in specified amounts on March 2, 1987. The defendants served a motion for judgment notwithstanding the verdict and/or to alter or amend the judgment on the plaintiff on March 12, 1987. The motion was subsequently filed in the district court. The defendants filed a notice of appeal (87-3317) from the judgment on March 31, 1987. The district court entered an order of remittitur on April 9, 1987, and modified that order on April 29, 1987 and May 8, 1987. The defendants filed a second notice of appeal (87-3502) on May 26, 1987 from the three orders of remittitur. The plaintiff then filed a post-judgment motion for attorney's fees, which is apparently still pending before the district court.

Although the plaintiff argues that there is no final appealable order herein because the district court has not ruled upon her motion for attorney's fees, a post-judgment motion for attorney's fees does not deprive this Court of jurisdiction to review the judgment on the merits. Memphis Sheraton Corp. v. Kirkley, 614 F.2d 131 (6th Cir. 1980); see also Morgan v. Union Metal Mfg., 757 F.2d 792 (6th Cir. 1985). Therefore, the instant appeals are not invalid on the grounds urged by the plaintiff. However, this Court must sua sponte consider its own jurisdiction if a question of appealability exists. Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737 (1976); Ambrose v. Welch, 729 F.2d 1084 (6th Cir. 1984) (per curiam).

Rule 4(a) (4), Federal Rules of Appellate Procedure, provides that a notice of appeal filed before the disposition of a motion made under Rules 50(b) or 59(e), Federal Rules of Civil Procedure, shall have no effect. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). A new notice of appeal must be filed within thirty days after entry of the order disposing of the motion. Rule 4(a) (4) and Rule 4(a) (1), Federal Rules of Appellate Procedure.

The defendants' first appeal (87-3317) was filed while their Rule 50(b) or Rule 59(e) motion was pending in the district court, and thus was premature. However, their second appeal (87-3502) was filed within thirty days after entry of the order disposing of the motion to alter or amend (the final order of remittitur). Therefore, it was filed in a timely manner. Accordingly,

It is ORDERED that the motion to dismiss is granted as to appeal number 87-3317 but is denied as to 87-3502.