Unpublished Dispositionkenneth W. Jamison, Plaintiff-appellant, v. Ashtabula Joint Vocational School, Donald Halsey,defendants-appellees, 933 F.2d 1008 (6th Cir. 1991)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 RALPH B. GUY, Jr. and DAVID A. NELSON, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.


ORDER

The plaintiff appeals summary judgment for the defendants in this civil rights action alleging constructive discharge from his termination from employment. The district court entered judgment upon the docket on March 7, 1991. Within ten days, as computed under Fed. R. Civ. P. 6(a), the plaintiff filed a motion for reconsideration. While that motion was pending, the plaintiff filed a notice of appeal. (Case No. 91-3326.) An order to show cause why the appeal should not be dismissed was entered April 11, 1991. The motion to reconsider was denied on April 9, 1991, and the plaintiff filed a second notice of appeal. (Case No. 91-3370.)

A motion for reconsideration made within ten days of the judgment may be considered a motion to alter or amend the judgment under Fed. R. Civ. P. 59(e). Moody v. Pepsi-Cola, 915 F.2d 201, 206 (6th Cir. 1990). A timely motion to alter or amend the judgment tolls the time for appeal. See Fed. R. App. P. 4(a) (4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam). A notice of appeal filed while such a motion is pending is of no effect, and a new notice of appeal must be filed within the period for appeal upon the district court's disposition of the motion. Fed. R. App. P. 4(a) (4).

It is therefore ORDERED that the appeal in Case No. 91-3326 is dismissed sua sponte as premature. Case No. 91-3370 shall remain upon the docket.