In Re Tennessee Pipe Fabricators, Inc.; Arnold A. Lively, Debtors.blaine-hays Construction Company; Merit Mechanicalconstructors, Inc.; United States Fidelity Andguaranty Company, Plaintiffs, v. Arnold A. Lively; Tennessee Pipe Fabricators, Inc.;stephen M. Blizzard; Thomas F. Heslep; B.l. Hodge; B.l.hodge & Company, Inc.; Arlee Gribble; Morris Harbin;morris Harbin, Doing Business As Morris Harbin Construction;piping Systems, Inc.; Stainless & Alloy Piping, Inc.,craig Neal; David G. Malcolm; Touche Ross & Company, Defendants,george A. Harbour, Iii; Defendant-appellant,southeast Federal Savings Bank, Defendant-appellee, 958 F.2d 372 (6th Cir. 1992)Annotate this Case
Before KENNEDY and SILER, Circuit Judges, and ENGEL, Senior Circuit Judge.
On February 28, 1992, appellant filed a notice of appeal from the January 30, 1992, judgment of the district court dismissing his cross-claim against Appellee Southeast Federal Savings Bank. However, on January 31, 1992, appellant filed a motion in the district court pursuant to Rule 59(e), Fed. R. Civ. P., seeking to alter or amend the judgment. The Rule 59(e) motion was pending at the time the notice of appeal was filed, but was denied by the district court on March 3, 1992.
Rule 4(a) (4), Fed. R. App. P., provides that the timely filing of a motion under Rule 59 serves to toll the time for filing a notice of appeal. A notice of appeal filed before the disposition of any such motion is of no effect. See Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam). Thus, the February 28, 1992, notice of appeal is of no effect and cannot confer jurisdiction in this court. Appellant must file a new notice of appeal within thirty days of the March 3, 1992, denial of his Rule 59(e) motion.
It therefore is ORDERED that this action is sua sponte dismissed for lack of jurisdiction.