Unpublished Dispositiondennis R. Baur, Petitioner-appellant, v. United States of America, Respondent-appellee, 863 F.2d 883 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 863 F.2d 883 (6th Cir. 1988) Dec. 1, 1988

Before KENNEDY, RALPH B. GUY, Jr. and RYAN, Circuit Judges.


ORDER

This matter is before the court upon consideration of the respondent's motion to dismiss the appeal for lack of jurisdiction on the basis that the notice of appeal was premature. The appellant has responded.

A review of the record indicates that the judgment of the district court was entered on June 14, 1988. Petitioner filed a motion seeking a new trial and amendment of judgment on June 24, 1988, which is construed as a Fed. R. Civ. P. 59(e) motion. Although the record fails to reflect a service date of the June 24 motion, petitioner has stated to this court in his response to the motion to dismiss that he served the Fed. R. Civ. P. 59(e) motion upon the respondents the same day it was filed, June 24, 1988. Thus, it appears that the motion was served within the ten day period prescribed by Fed. R. Civ. P. 59(e) as computed by Fed. R. Civ. P. 6(a), and tolled the appeals period. Petitioner filed his notice of appeal on August 11, 1988.

This court lacks jurisdiction in the appeal. 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 effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion...." A timely notice of appeal is mandatory and jurisdictional. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982); Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978).

It is ORDERED that the motion to dismiss be granted and the appeal be and hereby is dismissed. Rule 8, Rules of the Sixth Circuit.