Brian M. Bartley, Plaintiff-appellant, v. Richard A. Handelsman; Handelsman Venture Group,defendants-appellees, 952 F.2d 1397 (6th Cir. 1991)

ORDER

The plaintiff is appealing an order of the district court granting summary judgment for the defendants in this breach of contract case. The order granting summary judgment was entered on the district court's docket sheet on September 5, 1991. On September 10, 1991, within ten days as computed by Fed. R. Civ. P. 6(a), the plaintiff filed a motion for reconsideration of the summary judgment order. On October 1, 1991, prior to disposition of the motion for reconsideration, the plaintiff filed his notice of appeal.

A motion to reconsider a judgment which is served within ten days of judgment, as calculated pursuant to Fed. R. Civ. P. 6(a), may be construed as a motion to amend the judgment. Kennedy v. City of Cleveland, 797 F.2d 297, 304-05 (6th Cir. 1986), cert. denied, 479 U.S. 1103 (1987). A notice of appeal filed prior to the disposition of such a motion is of no effect. Fed. R. App. P. 4(a) (4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam). A new notice of appeal must be filed within the prescribed time for appeal following disposition of the motion.

The court notes that the plaintiff's motion for reconsideration was denied by the district court on October 2, 1991, and that the plaintiff perfected a timely appeal following entry of the order denying reconsideration. That appeal has been docketed in this court as Case No. 91-2201.

It is therefore ORDERED that the plaintiff's appeal is dismissed sua sponte for lack of jurisdiction without prejudice to the plaintiff's right to pursue his appeal in Case No. 91-2201. Rule 9(b) (1), Local Rules of the Sixth Circuit.