Unpublished Dispositionsamuel King, Plaintiff-appellant, v. Bonnie Johnson, Defendant-appellee, 927 F.2d 604 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 927 F.2d 604 (6th Cir. 1991)

Feb. 26, 1991


E.D. Mich., No. 90-70742; Friedman, J.

E.D. Mich.

DISMISSED.

Before RYAN and ALAN E. NORRIS, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.


ORDER

This case is before the court upon consideration of the appellant's motion for an injunction pending appeal, and motion for in forma pauperis status. The appellee has failed to respond.

A review of the record indicates that the final order of the district court was entered October 26, 1990. A motion to alter judgment was served November 2, 1990, and filed November 6, 1990. Such motion served within ten days of entry of the final decision is properly treated as a time-tolling Fed. R. Civ. P. 59(e) motion. White v. New Hampshire Dep't of Empl. Sec., 455 U.S. 445, 451 (1982); Moody v. Pepsi-Cola Metropolitan Bottling Co., 915 F.2d 201, 206 (6th Cir. 1990); United States v. Cooper, 876 F.2d 1192, 1195 (5th Cir. 1989) (per curiam). A notice of appeal was filed November 15, 1990. Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed before the disposition of a Fed. R. Civ. P. 59 motion shall have no effect. A timely notice of appeal is mandatory and jurisdictional. Osterneck v. Ernst & Whinney, 489 U.S. 169, 173-74 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The district court by order entered November 19, 1990, denied the motion to alter judgment.

The motion for an injunction pending appeal is denied as appellant did not establish serious, perhaps irreparable consequences that can be effectively challenged only by immediate appeal. See Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981).

It is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 8, Rules of the Sixth Circuit. The motion to proceed in forma pauperis is denied.