Unpublished Dispositionherman Shelton, Plaintiff-appellant, v. Indiana and Michigan Electric Company, Defendant-appellee, 895 F.2d 1414 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 895 F.2d 1414 (6th Cir. 1990)

Feb. 8, 1990


Before NATHANIEL R. JONES and MILBURN, Circuit Judges, and CARL B. RUBIN, Chief District Judge* .

ORDER

The plaintiff appeals summary judgment for the defendant and dismissal, without prejudice, of all the remaining state common law claims in this action alleging a racially motivated discharge from employment. The district court's judgment order and opinion were dated December 13, 1989. However, the district court's docket sheet indicates that the judgment and opinion were not entered on the docket until January 4, 1990. Within ten days of that entry as computed by Fed. R. Civ. P. 6(a), the plaintiff filed and served a motion for reconsideration which requested the court to reverse its decision granting summary judgment. Prior to a disposition of the motion, the plaintiff filed his notice of appeal.

A motion to reconsider which seeks reversal of the court's prior judgment, may be properly construed as a motion to alter or amend under Fed. R. Civ. P. 59(e). Smith v. Hudson, 600 F.2d 60, 62 (6th Cir. 1979); see also Huff v. Metropolitan Life Insurance Co., 675 F.2d 119, 122 (6th Cir. 1982). Fed. R. Civ. P. 59(e) provides that such motions shall be served not later than ten days after entry of the judgment. In this instance, the plaintiff's motion was within ten days of the entry of judgment. A notice of appeal filed prior to the disposition of a timely motion to alter or amend is of no effect. Fed. R. App. P. 4(a) (4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam). A new notice of appeal must be filed within the prescribed time following disposition of the motion. Id.

It is therefore ORDERED that this appeal is dismissed sua sponte for lack of jurisdiction without prejudice to the timely perfection of an appeal following disposition of the pending motion. Rule 9(b) (1), Local Rules of the Sixth Circuit.

 *

The Honorable Carl B. Rubin, Chief U.S. District Judge for the Southern District of Ohio, sitting by designation