M.l. Noe, et al. Trustees of the Ohio Operating Engineershealth and Welfare Plan, Plaintiffs-appellees, v. Albert C. Thomas, D/b/a Thomas Excavating Company,defendant-appellant, 947 F.2d 945 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 947 F.2d 945 (6th Cir. 1991)

Nov. 7, 1991


Before BOGGS and ALAN E. NORRIS, Circuit Judges, and BERTELSMAN, Chief District Judge* .

ORDER

The defendant, Albert C. Thomas, d/b/a Thomas Excavating, appeals summary judgment for the plaintiffs in this action under the Employment Retirement Income Security Act of 1974 (ERISA) in which the plaintiffs allege that the defendants failed to make fringe benefits contributions on behalf of employees. The district court entered its opinion and order and judgment on September 10, 1991. On September 19, 1991, defendant Thomas filed and served upon plaintiff a "Motion for Rehearing or to Modify Portion of Decision." In that motion the defendant asked the district court to modify a portion of its order directing an audit of records. While that motion was pending, the defendant filed a notice of appeal.

A motion to reconsider or which seeks modification of a judgment is properly brought under Fed. R. Civ. P. 59(e). Moody v. Pepsi-Cola Metro. Bottling Co., 915 F.2d 201, 206 (6th Cir. 1990); Kennedy v. City of Cleveland, 797 F.2d 297, 304-05 (6th Cir. 1986), cert. denied, 479 U.S. 1103 (1987). In the instant case, the defendant's motion was served and filed within ten days of the judgment as computed under Fed. R. Civ. P. 6(a). A timely motion to alter or amend the judgment under Fed. R. Civ. P. 59(e) tolls the time for an appeal. Fed. R. App. P. 4(a) (4). A notice of appeal filed during the pendency of such a motion is of no effect. Id.; Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam). A new notice of appeal must be filed within the time for appeal, commencing with the district court's disposition of the Rule 59(e) motion. See Fed. R. App. P. 4(a) (4).

It therefore is ORDERED that this appeal is dismissed sua sponte for lack of jurisdiction, without prejudice to the defendant's right to perfect a timely appeal upon the district court's disposition of the pending motion for rehearing or modification.

 *

The Honorable William O. Bertelsman, Chief United States District Judge for the Eastern District of Kentucky, sitting by designation