Unpublished Dispositiongeorge Tate, Plaintiff-appellant, v. Warden E. Hosking; S. Shavers, Cpl.; Lisa Roberts; J.r.parchuri; Sonya Mccall, Defendants-appellees, 914 F.2d 258 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 914 F.2d 258 (6th Cir. 1990) Sept. 25, 1990


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 documents before the court indicates that the final order was entered January 18, 1990. The appellant filed a Fed. R. Civ. P. 59 motion to reconsider on January 29, 1990, which was within ten days of entry of judgment as computed pursuant to Fed. R. Civ. P. 6(a). Such motion tolled the appeal period. See Fed. R. App. P. 4(a) (4); Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir. 1988). A notice of appeal was filed January 30, 1990. 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, 489 U.S. 169, ----, 109 S. Ct. 987, 990 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The district court had not ruled on the motion to reconsider at the time the notice of appeal was filed.

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