Unpublished Dispositionjames P. Lawson, Plaintiff-appellee, v. Gelman Sciences, Inc., Defendant-appellant (90-3377),arthur H. Thomas Company, A/k/a Thomas Scientific,defendant-appellant (90-3376/3378), 924 F.2d 1058 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 924 F.2d 1058 (6th Cir. 1991)

Feb. 1, 1991

Before KEITH and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.


The defendants, Arthur H. Thomas Co. and Gelman Sciences Inc., have filed several appeals from the judgment for plaintiff and denial of their postjudgment motions in this products liability diversity action for personal injury.

The district court's docket sheet indicates that the final judgment was entered on February 23, 1990. On March 6, 1990, defendant Arthur H. Thomas Co. moved for judgment notwithstanding the verdict. Defendant Gelman Sciences Inc. made a similar motion on March 8, 1990. On March 9, 1990, the plaintiff made a motion for prejudgment interest. All of these motions were made within ten days of the judgment as calculated pursuant to Fed. R. Civ. P. 6(a).

On March 21, 1990, the district court entered two marginal orders overruling the defendants' motions for judgment notwithstanding the verdict. Within thirty days, defendant Arthur H. Thomas Co. filed two appeals (Case Nos. 90-3376 and 90-3378). Defendant Gelman Sciences Inc. also filed a notice of appeal. (Case No. 90-3377). However, the plaintiff's motion for prejudgment interest remained pending at the time these appeals were perfected. A motion for prejudgment interest made within ten days of the entry of judgment is properly construed as a time-tolling motion under Fed. R. Civ. P. 59(e). Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989); Stern v. Shouldice, 706 F.2d 742, 747 (6th Cir.), cert. denied, 464 U.S. 993 (1983). Accordingly, the notices of appeal filed prior to the disposition of that motion are premature and without effect. See Fed. R. App. P. 4(a) (4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam) .

Subsequently, on November 20, 1990, the district court denied the plaintiff's motion for prejudgment interest. Both defendants have now perfected timely appeals. (Case Nos. 90-4089/4090).

It is therefore ORDERED that the appeals in Case Nos. 90-3376/3377/3378 are dismissed sua sponte for lack of jurisdiction. This order shall have no effect upon the appeals pending in Case Nos. 90-4089/4090, and the briefing schedule previously entered in those cases shall remain in effect.