Unpublished Dispositionmarcus Lynn Bishop, Plaintiff-appellant, v. District of Columbia, et al., Defendants-appellees, 836 F.2d 549 (6th Cir. 1987)

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U.S. Court of Appeals for the Sixth Circuit - 836 F.2d 549 (6th Cir. 1987) Dec. 22, 1987

Before BOYCE F. MARTIN, Jr. and RALPH B. GUY, Jr., Circuit Judges, and EDWARD H. JOHNSTONE, Chief District Judge.* 

ORDER

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. The petitioner appeals the district court's dismissal of his petition seeking a writ of habeas corpus.

The district court's judgment dismissing Bishop's petition for habeas corpus was entered May 21, 1987. On May 27, 1987, Bishop simultaneously filed in the district court a Fed. R. Civ. P. 59(e) motion for reconsideration and a notice of appeal. Fed. R. Civ. P. 59(e) requires that a motion for reconsideration be served within ten days. The district court record discloses that no defendant was ever served process, therefore, no defendant party was before the court. Cf. Loman Dev. Co. v. Daytona Hotel & Motel Suppliers, Inc., 817 F.2d 1533 (11th Cir. 1987). Consequently, the Fed. R. Civ. P. 59(e) motion filed in the district court within the ten day period following entry of judgment tolled the appeals period. See Windsor v. United States Dep't of Justice, 740 F.2d 6 (6th Cir. 1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1019 (6th Cir. 1983). The Fed. R. Civ. P. 59(e) motion was denied on June 11, 1987.

Because the Fed. R. Civ. P. 59(e) motion tolled the appeals period, Bishop's notice of appeal filed May 27, 1987, was premature. Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed before the disposition of a timely Fed. R. Civ. P. 59(e) motion shall have no effect.

Therefore, this court lacks jurisdiction to review this appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982); Browder v. Director of Corrections, 434 U.S. 257, 264 (1978).

Accordingly, it is ordered that this appeal is dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.

 *

The Honorable Edward H. Johnstone, Chief U.S. District Judge for the Western District of Kentucky, sitting by designation