Unpublished Dispositionrobert A. Frank, Plaintiff-appellant, v. Bernard D'ambrosi, Bertin Steel Processing, Inc., Michtin,inc., U.s.s., Inc., U.s.x., Inc., Robert Meyer,robert K. Fravel, Atlas-lederer Company,john Doe, (1-10), Defendants-appellee, 933 F.2d 1008 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 933 F.2d 1008 (6th Cir. 1991) May 23, 1991

Before ALAN E. NORRIS and SUHRHEINRICH, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.


ORDER

The plaintiff appeals the summary judgment for defendants in this securities and civil RICO action. The plaintiff now seeks to have this appeal held in abeyance pending the docketing and proposed consolidation of this appeal with a subsequent appeal.

The district court entered its judgment in this action on February 20, 1991. The plaintiff filed a combined motion to alter or amend judgment under Rule 59(e), Fed. R. Civ. P., and to vacate judgment under Rule 60(b), Fed. R. Civ. P., on March 11, 1991. The notice of appeal giving rise to the present appeal was filed on March 22, 1991.

The district court denied the combined Rule 59(e)/60(b) motion on April 8, 1991. The plaintiff filed a second notice of appeal on April 17, 1991. That appeal has now been docketed with the court as Case No. 91-3385.

Rule 4(a) (4), Fed. R. App. P., provides, in part, that if a timely motion to alter or amend the judgment is filed by any party under Rule 59(e), Fed. R. Civ. P., "the time for appeal for all parties shall run from the entry of the order ... granting or denying ... such motion." Any notice of appeal filed prior to a ruling on the tolling Rule 59(e) motion is of no effect; instead, a new notice of appeal must be filed after disposition of the motion. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam).

Pursuant to Rule 59(e), a motion to alter or amend is timely if it is served within ten (10) days of the judgment. Here, the motion to alter or amend was served on March 9, 1991. Computing the ten days as provided under Rule 6(a), Fed. R. Civ. P., the plaintiff's motion was timely and therefore tolled the time for appealing the underlying judgment. The notice of appeal filed on March 22, 1991, was of no effect and imparted no jurisdiction to this court.

It therefore is ORDERED that this appeal is dismissed sua sponte for lack of jurisdiction. Rule 9(a), Rules of the Sixth Circuit. The motion to hold the appeal in abeyance is rendered moot. This order shall have no effect upon Case No. 91-3385.