Damon Earl Alexander, Jr., Plaintiff-appellant, v. Greater Cleveland Regional Transit Authority; Amalgamatedtransit Union, Local # 268, Defendants-appellees, 948 F.2d 1288 (6th Cir. 1991)Annotate this Case
Nov. 27, 1991
Before DAVID A. NELSON and SUHRHEINRICH, Circuit Judges and CELEBREZZE, Senior Circuit Judge.
The plaintiff has filed a notice of appeal from the district court's order denying his motion to reconsider the judgment entered in favor of the defendants in this civil rights action relating to events connected with the plaintiff's employment. The defendant, Greater Cleveland Regional Transit Authority, moves to dismiss the appeal on grounds that it was not timely filed. The plaintiff has responded in opposition.
The district court entered an order dismissing plaintiff's claims for failure to state a cause of action on April 25, 1991. On June 23, 1991, the plaintiff filed a motion for reconsider that order. The district court denied the motion to reconsider by order entered on June 26, 1991. Within thirty days, the plaintiff filed a notice of appeal from the order of June 26, 1991.
A motion to reconsider which is served within ten days of the judgment is properly brought under Fed. R. Civ. P. 59(e). Moody v. Pepsi-Cola Metro. Bottling Co., 915 F.2d 201 (6th Cir. 1990). Such a motion tolls the time for appeal from the judgment. See Fed. R. App. P. 4(a) (4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam). However, in the instant case the plaintiff's motion was not brought within ten days. An untimely motion to reconsider does not toll the time for appeal. Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1104 (6th Cir. 1985). Accordingly, his attempt to appeal the final judgment in this case is untimely.
It therefore is ORDERED that the defendant's motion to dismiss this appeal is granted.