Unpublished Dispositionconstruction Interior Systems, Inc., Plaintiff-appellee, v. Marriott Corporation, et al., Defendants,marriott Family Restaurants, Inc., Defendant-appellant, 924 F.2d 1057 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 924 F.2d 1057 (6th Cir. 1991) Feb. 7, 1991

Before RYAN and SUHRHEINRICH, Circuit Judges; and SILER, Chief District Judge.* 

ORDER

The defendant appeals the district court's judgment in favor of the plaintiff in this diversity contract dispute. The district court's docket sheet indicates that judgment was entered in the district court on November 16, 1990. On December 3, 1990, the defendant filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. On December 14, 1990, while that motion was still pending, the defendant filed a notice of appeal.

The defendant's motion was made within ten days of the judgment. See Fed. R. Civ. P. 6(a) (intermediate Saturdays, Sundays, and legal holidays are excluded). If a timely motion for judgment under Fed. R. Civ. P. 50(b) or for new trial under Fed. R. Civ. P. 59 is made, the time for appeal shall run from the entry of the order denying a new trial or other time-tolling motion. Fed. R. App. P. 4(a) (4). A notice of appeal filed before the disposition of any of the above motions is of no effect, and a new notice must be filed within the prescribed time. Id.

It is therefore ORDERED that this appeal is dismissed sua sponte for lack of jurisdiction, without prejudice to the defendant's right to perfect a timely appeal in the event its post-judgment motion is denied. Rule 9(b) (1), Local Rules of the Sixth Circuit.

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The Honorable Eugene E. Siler, Jr., Chief U.S. District Judge for the Eastern District of Kentucky, sitting by designation