Unpublished Dispositionmarta E. Ross, M.d., Plaintiff-appellee, v. William Beaumont Hospital, a Michigan Non-profitcorporation; Gerald S. Wilson, M.d.; John W.murphy, M.d., Jointly and Severally,defendants-appellants, 844 F.2d 789 (6th Cir. 1988)

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U.S. Court of Appeals for the Sixth Circuit - 844 F.2d 789 (6th Cir. 1988) April 8, 1988

Before KEITH and ALAN E. NORRIS, Circuit Judges, and GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.


The defendants appeal from a judgment entered January 15, 1988 from a jury verdict for the plaintiff and from the award of attorney's fees in this employment discrimination and breach of contract action. On February 1, 1988, the defendants filed a motion for judgment notwithstanding the verdict pursuant to Rule 50(b), Fed. R. Civ. P. To date, the district court has not ruled on this motion. A notice of appeal was filed February 16, 1988.

Rule 4(a) (4), Fed. R. App. P., provides that a notice of appeal shall be filed within thirty (30) days after entry of the order appealed from. However, a motion for judgment notwithstanding the verdict under Rule 50(b), Fed. R. Civ. P., tolls the time for appeal if served not later than ten (10) days after entry of the judgment. Rule 4(a) (4), Federal Rules of Appellate Procedure, Marrical v. Detroit News, Inc., 805 F.2d 169, 171 (6th Cir. 1986) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1019 (6th Cir. 1983). In computing the ten (10) day period, Fed. R. Civ. P. 6(a) requires that intervening Saturdays, Sundays and legal holidays be excluded. Denley v. Shearson/American Express, Inc., 733 F.2d 39, 41 (6th Cir. 1984) (per curiam). The requirement of a timely notice of appeal is "mandatory and jurisdictional." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978). Consequently, a notice of appeal filed before disposition of a time-tolling motion is premature and 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 that motion to confer jurisdiction on this Court. Rule 4(a) (4), Fed. R. App. P., Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam).

The defendant's motion filed February 1, 1988 tolled the time for filing a notice of appeal. The notice of appeal filed February 16, 1988 is therefore premature and without effect. Accordingly,

It is ORDERED that this appeal is dismissed. Rule 9(b) (1), Rules of the Sixth Circuit. Should the defendants wish to appeal after the motions filed February 1 have been adjudicated, a new notice of appeal must be filed pursuant to the provisions of Rule 4(a) (4).