Ralph Morris; Shirley Morris, Plaintiffs-appellants, v. John A. Savoy, M.d., Defendant-appellee, 966 F.2d 1453 (6th Cir. 1992)

Before NATHANIEL R. JONES and RALPH B. GUY, Jr., Circuit Judges, and JOINER, Senior District Judge.^* 

ORDER

The plaintiffs appeal the final judgment in this medical malpractice action. Within ten days of entry of that judgment, the defendant served and filed a motion to vacate that portion of the court's order which denied a setoff. Although captioned as a motion under Fed. R. Civ. P. 60(b), the motion more resembled a request to alter or amend the judgment under Fed. R. Civ. P. 59(e). In a prior order, this court declined to address whether this appeal was premature and directed the district court to first address the pending motion. The district court has now done so. In an order entered on April 1, 1992, the district court stated that the motion "is in reality a Rule 59(e) motion to alter or amend the judgment." In the same order the district court granted the motion insofar as a portion of the prior judgment was vacated. Following further hearing, the district court reaffirmed its prior holding and reinstated the prior judgment by an order entered on April 27, 1992.

A motion to alter or amend the judgment under Fed. R. Civ. P. 59(e) tolls the period for appeal. See Fed. R. App. P. 4(a) (4). A notice of appeal filed prior to the disposition of such a motion is of no effect. Id.; Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam). A new notice of appeal must be filed within the time for appeal following the disposition of the motion. Further, a time-tolling motion brought by any party tolls the time for appeal for all parties. Marrical v. Detroit News, Inc., 805 F.2d 169, 171 (6th Cir. 1986) (per curiam).

Therefore, it is ORDERED that this appeal is dismissed sua sponte for lack of jurisdiction, without prejudice to the plaintiffs' right to now perfect a timely appeal.