Jeffrey Johnson, Plaintiff-appellant, v. Bill Smith, (job Coordinator, Rmsi), Defendant-appellee, 956 F.2d 269 (6th Cir. 1992)

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U.S. Court of Appeals for the Sixth Circuit - 956 F.2d 269 (6th Cir. 1992) Feb. 25, 1992

Before RYAN and SUHRHEINRICH, Circuit Judges, and CHURCHILL, Senior District Judge.* 

ORDER

This matter has been referred to a panel of the court. A review of the documents before the court indicates that the final order of the district court was entered February 28, 1991. A motion for reconsideration was filed on March 4, 1991. The certificate of service indicates that it was served on the same day that it was submitted to the clerk. Such motion was served within ten days of the decision and tolled the appeal period. See Fed. R. App. P. 4(a) (4); 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). The appellant's notice of appeal was filed on March 18. The case was reopened on March 21, 1991, and subsequently dismissed by order filed August 7, 1991, and entered August 8, 1991.

Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed before the disposition of a time-tolling motion shall have no effect. A timely notice of appeal is mandatory and jurisdictional. Osterneck v. Ernst & Whinney, 489 U.S. 169, 173-74 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). A new notice of appeal must be filed after entry of the ruling on the motion for reconsideration. Although the case was reopened and subsequently dismissed, no new notice of appeal was filed. A review of our records has failed to locate any document received from the appellant within the appeal period which may be construed as a new notice of appeal. See Smith v. Barry, 60 U.S.L.W. 4065 (Jan. 14, 1992).

Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 8(a), Rules of the Sixth Circuit.

 *

The Honorable James P. Churchill, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation