Gordon Dennis Johnson, Plaintiff-appellant, v. Lone Star Cement, Inc., Defendant-appellee, 872 F.2d 417 (4th Cir. 1989)

Gordon Dennis Johnson seeks to appeal the dismissal, without prejudice, of his complaint filed under Title VII, 42 U.S.C. § 2000e et seq. The complaint was dismissed by order entered November 7, 1988, as a sanction against Johnson for failing to appear at a deposition and for not responding to a request for production of documents. We dismiss the appeal for lack of jurisdiction.

Within 10 days after entry of the order dismissing the suit, as calculated under Fed. R. Civ. P. 6(a), Johnson filed a motion in the district court to reinstate the complaint. Thereafter, he filed a notice of appeal to this Court. Because the motion to reinstate called into question the correctness of the district court's judgment, and was served within 10 days after the judgment's entry, see Fed. R. Civ. P. 5(b), 6, it is construed as a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e). See Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978). As Johnson filed his notice of appeal before the district court acted on the motion to reinstate, the notice became a nullity, and we lack jurisdiction to hear the appeal. Fed. R. App. P. 4(a) (4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982). Johnson must await disposition by the district court of his motion to reinstate before he may appeal to this Court.

Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.

DISMISSED.