United States of America, Plaintiff-appellee, v. Ralph C. Shipp, Defendant-appellant, 960 F.2d 148 (4th Cir. 1992)

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US Court of Appeals for the Fourth Circuit - 960 F.2d 148 (4th Cir. 1992) Submitted: April 6, 1992Decided: April 21, 1992

Before ERVIN, Chief Judge, and MURNAGHAN and WILLIAMS, Circuit Judges.

Ralph C. Shipp, Appellant Pro Se.

William Anthony Kolibash, United States Attorney, Elkins, West Virginia, for Appellee.

OPINION

PER CURIAM:


Ralph C. Shipp noted this appeal from the district court's judgment pending disposition of a timely motion to alter or amend that judgment. We dismiss the appeal as premature.

Under Fed. R. App. P. 4(a) (4), a notice of appeal filed before disposition of a timely Fed. R. Civ. P. 50(b), 52(b), or 59 motion is without effect, and a new notice of appeal must be filed within the appeal period measured from entry of the order disposing of the motion. This Court construes a motion served within ten days of entry of judgment which calls into question the correctness of that judgment as a Rule 59 motion, however the motion may be formally styled. Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978). Under Dove and Fed. R. App. P. 4(a) (4), Appellant's post-judgment motion invalidated the notice of appeal and requires dismissal of this appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). Appellant may file a new notice of appeal within the appeal period measured from disposition of the Rule 59 motion.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

DISMISSED