Unpublished Dispositioncornelia D. Garrett, Plaintiff-appellee, v. Detroit Edison Company, Defendant-appellant, 883 F.2d 74 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 883 F.2d 74 (6th Cir. 1989) Aug. 15, 1989

Before BOYCE F. MARTIN, Jr., WELLFORD and MILBURN, Circuit Judges.


ORDER

This matter is before the Court upon consideration of the parties' responses to this Court's order of July 11, 1989, directing the parties to address appellate jurisdiction.

The defendant appeals an order denying its motion for judgment notwithstanding the verdict in this employment discrimination action. The district court's docket sheet indicates that judgment for the plaintiff was entered on May 4, 1989. Within ten days, the defendant filed a motion for judgment notwithstanding the verdict, and the plaintiff filed a motion for entry of a final amended judgment and order assessing prejudgment interest, as well as costs and attorney fees. The district court denied the defendant's motion. The defendant appealed within 30 days of that denial, while the plaintiff's motion for entry of final amended judgment was outstanding. The defendant advises in its response that the plaintiff's motion has not yet been ruled upon, and concedes that this appeal is premature. The plaintiff agrees.

Fed. R. App. P. 4(a) (4) provides that if certain timely motions are filed, the time for appeal shall run from the order granting or denying the motion. A notice of appeal filed prior to disposition of the motion is of no effect, and a new notice of appeal is required. Id. A motion for prejudgment interest filed within ten days of entry of judgment is properly construed as a time-tolling motion under Fed. R. Civ. P. 59(e). Osterneck v. Ernst & Whinney, 109 S. Ct. 987, 992; Stern v. Shouldize, 706 F.2d 742, 747 (6th Cir.), cert. denied, 464 U.S. 993 (1983).

It is therefore ORDERED that this appeal is dismissed sua sponte without prejudice to the defendant's right to file a timely notice of appeal following resolution of the plaintiff's motion. Rule 9(b), Local Rules of the Sixth Circuit.