Securities and Exchange Commission, Plaintiff-appellee, v. Classic Mining Corporation, et al., Defendants,a. Leonard Varah, Defendant-appellant, 956 F.2d 270 (6th Cir. 1992)

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U.S. Court of Appeals for the Sixth Circuit - 956 F.2d 270 (6th Cir. 1992) Feb. 24, 1992

Before KEITH and SILER, Circuit Judges, and WELLFORD, Senior Circuit Judge.


This matter has been referred to a panel of the court. A review of the record indicates that the final order of the district court was entered November 14, 1991. A Fed. R. Civ. P. 59(e) motion for reconsideration was served on November 25, 1991, and filed November 26, 1991, by the appellant. 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 filed on December 23, 1991, was docketed as appeal No. 92-5021. Reconsideration was denied by the district court by order filed December 30 and entered December 31, 1991. Appellant's second notice of appeal filed on January 14, 1992, was docketed as appeal No. 92-5078.

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. Reconsideration was denied by order entered December 31, 1991, and a new notice of appeal was filed as appeal No. 92-5078.

Accordingly, it is ORDERED that appeal No. 92-5021 be, and it hereby is, dismissed for lack of jurisdiction. Rule 8(a), Rules of the Sixth Circuit.