Unpublished Dispositionbetty Royal, Plaintiff-appellant, v. Julius Marks Homes, Incorporated, Defendant-appellee, 838 F.2d 471 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 838 F.2d 471 (6th Cir. 1988) Feb. 4, 1988

Before BOYCE F. MARTIN, JR., RALPH B. GUY, JR., and BOGGS, Circuit Judges.


This matter is before the court upon consideration of the appellee's motion to dismiss the appeal for lack of jurisdiction because of a late filed notice of appeal. Appellant has failed to respond to the motion but she has filed a motion for leave to proceed in forma pauperis.

A review of the record indicates that the judgment of the district court was entered February 4, 1987. Appellant filed a Fed. R. Civ. P. 59(b) motion for new trial on May 7, 1987, which did not contain a certificate of service. Such motion not having been served within 10 days after entry of a judgment as required by Fed. R. Civ. P. 59(b), failed to toll the appeals period. Fed. R. App. P. 4(a) (4); Marrical v. Detroit News, Inc., 805 F.2d 169, 171 (6th Cir. 1986) (per curiam); Myers v. Ace Hardware, Inc., 777 F.2d 1099 (6th Cir. 1985). The motion was denied on May 14, 1987. Appellant filed on September 14, 1987, an unserved motion for reconsideration of the May 14, 1987, order. A Fed. R. Civ. P. 59(e) motion for reconsideration is required to be served within 10 days after entry of the judgment. That motion was denied on September 18, 1987.

This court lacks jurisdiction in this appeal. No time-tolling motion was filed from the final judgment. The notice of appeal from the final judgment was filed 8 months late. Fed. R. App. P. 4(a) and 26(a). An order denying a motion for new trial or denying reconsideration is not appealable but can be reviewed only when the motion tolled the appeals period. Carpenter v. Klosters Rederi A/S, 604 F.2d 11 (5th Cir. 1979); Peabody Coal Co. v. Local Union Nos. 1734, 1508 & 1548, UMW, 484 F.2d 78 (6th Cir. 1973).

It is ORDERED that the motion to proceed in forma pauperis be denied, the motion to dismiss the appeal be granted and the appeal be and hereby is dismissed for lack of jurisdiction. Rule 8, Rules of the Sixth Circuit.