Unpublished Dispositiondelores Johnson, Plaintiff-appellant, v. Frito-lay, Inc., Defendant-appellee, 905 F.2d 1538 (6th Cir. 1990)

ORDER

This matter is before the court upon consideration of the appellant's motion for appointment of counsel and leave to proceed on appeal in forma pauperis. The appellee has filed a motion to dismiss for lack of jurisdiction and a brief in support. Appellant has failed to respond.

A review of the record and documents before the court indicates that an order dismissing the case was entered by the district court on January 2, 1990. A motion to vacate the decision was dated, filed and evidently served on January 16, 1990. A notice of appeal was also filed January 16, 1990, and the motion to vacate was denied by order dated March 14, 1990. No new notice of appeal was filed.

Generally, a motion served within ten days of entry of judgment is properly construed as a time-tolling Fed. R. Civ. P. 59 (e) motion. Osterneck v. Ernst & Whinney, 109 S. Ct. 987, 992 (1989); Rados v. Celotex Corp., 809 F.2d 170, 171 (2d Cir. 1986); Kennedy v. City of Cleveland, 797 F.2d 297, 304-05 (6th Cir. 1986), cert. denied, 479 U.S. 1103 (1987). The running of the appeal period is tolled if a party serves a motion to reconsider within ten days of entry of the decision. Fed. R. Civ. P. 59(e) and Fed. R. App. P. 4(a) (4). The motion in the instant case apparently was served with the ten-day period and tolled the appeal period. 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 timely notice of appeal is mandatory and jurisdictional. Osterneck v. Ernst & Whinney, 109 S. Ct. at 990; Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). No new notice of appeal was filed after denial of the Rule 59 motion.

Accordingly, it is ORDERED that the motion to dismiss be granted and the appeal be, and it hereby is, dismissed. Rule 8, Rules of the Sixth Circuit. The motion for appointment of counsel and leave to proceed in forma pauperis is denied.