Unpublished Dispositionwilliam R. Bates, Plaintiff-appellant, v. Franklin County Board of Elections, Sherrod Brown, Secretaryof State of Ohio, Defendants-appellees, 836 F.2d 549 (6th Cir. 1987)Annotate this Case
Before BOYCE F. MARTIN, Jr. and RALPH B. GUY, Jr., Circuit Judges, and EDWARD H. JOHNSTONE, Chief District Judge.*
The defendants move to dismiss this case for lack of jurisdiction. The appeal has been referred to a 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 this civil rights action was entered on August 13, 1987. A Fed. R. Civ. P. 59(e) motion was filed on August 25, 1987. The motion was served by mail on opposing counsel on August 27, 1987. The motion was served within the ten day period provided by Fed. R. Civ. P. 59(e) and Fed. R. Civ. P. 6(a). This timely filing tolled the appeals. Fed. R. App. P. 4(a) (4). The notice of appeal was filed on September 16, 1987. The record does not reflect any disposition of the motion for reconsideration.
At the time the September 16, 1987 notice of appeal was filed, the motion for reconsideration had been ruled upon. Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed before the disposition of a timely Rule 59(e) motion "shall have no affect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion...." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 60-61 (1982). The filing of such a timely notice of appeal is mandatory and jurisdictional. Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978).
It is ordered that the appeal be 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