Unpublished Dispositionroy Karem George, Petitioner-appellant, v. William Seabold, Warden, Respondent-appellee, 877 F.2d 62 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 877 F.2d 62 (6th Cir. 1989) June 9, 1989

Before KEITH and ALAN E. NORRIS, Circuit Judges, and BALLEY BROWN, Senior Circuit Judge.


This 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 final order of the district court was entered April 7, 1989. The respondent served on April 14 and filed on April 17, 1989, a Fed. R. Civ. P. 59(e) motion to alter or amend the judgment. This filing of a timely Rule 59 motion tolled the appeal period pursuant to Fed. R. App. P. 4(a) (4). Mondrow v. Fountain House, 867 F.2d 798, 799 (3d Cir. 1989); Marrical v. Detroit News, Inc., 805 F.2d 169, 171 (6th Cir. 1986) (per curiam). The May 5, 1989, notice of appeal filed prior to the May 15, 1989 order denying the Rule 59 motion is premature. Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed before the disposition of a timely Rule 59 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. Osterneck v. Ernst & Whinney, 109 S. Ct. 987, 990 (1989); Acosta v. Louisiana Dep't of HHR, 478 U.S. 251 (1986) (per curiam); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam).

It is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.