The Anspec Company, Inc., a Michigan Corporation; Hughmontgomery, Plaintiffs-appellants, v. Johnson Controls, Inc., a Wisconsin Corporation; Hooveruniversal, Inc., a Michigan Corporation; Hoover Group,inc., a Delaware Corporation; Ultraspherics, Inc., Formerlya Michigan Corporation, Now Merged with Hoover Group, Inc.,defendants-appellees, 891 F.2d 289 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 891 F.2d 289 (6th Cir. 1989)

Dec. 4, 1989

Before BOYCE F. MARTIN, Jr. and ALAN E. NORRIS, Circuit Judges, and CONTIE, Senior Circuit Judge.


The plaintiffs appeal a judgment dismissing their complaint seeking to recover costs incurred to clean up chemical substances. The judgment of dismissal, dated September 25, 1989, was entered upon the district court's docket on September 26. On October 10 the plaintiff filed and served a motion for reconsideration or, in the alternative, for amendment of judgment pursuant to Fed. R. Civ. P. 59. The plaintiffs filed their notice of appeal on October 25, 1989, before any ruling had been made on their motion. An order denying the plaintiff's motion was entered on November 9, 1989.

A notice of appeal filed prior to the disposition of a timely motion made under Fed. R. Civ. P. 59 is without effect. Fed. R. App. P. 4(a) (4); see also Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam). Further, a motion to reconsider filed within ten days of judgment may be construed as a motion to alter or amend under Rule 59. Kennedy v. City of Cleveland, 797 F.2d 297, 304-05 (6th Cir. 1986), cert. denied, 479 U.S. 1103 (1987). The plaintiff's motion served on October 10 was timely under the provisions of Fed. R. Civ. P. 6(a) and accordingly tolled the time for appeal. Upon disposition of the motion, a new notice of appeal must be filed within the time prescribed for an appeal. See Fed. R. App. P. 4(a) (4).

It is therefore ORDERED that this appeal is dismissed sua sponte without prejudice to the plaintiff's right to perfect a timely appeal from the disposition of the motion to reconsider. Rule 9(b), Local Rules of the Sixth Circuit.