Virgil Cochran; Thomas Cochran, Plaintiffs-appellants, v. Martha D. Nelson, et al., Defendants-appellees, 12 F.3d 211 (6th Cir. 1993)Annotate this Case
Nov. 15, 1993
Before: MARTIN and MILBURN, Circuit Judges; and JOINER, Senior District Judge.*
This matter has been referred to a panel of the court for initial consideration of appellate jurisdiction.
A review of the record indicates that the final order of the district court dismissing the civil rights action was entered April 1, 1993. On April 23, the appellants filed in the district court a motion for orders and civil rights in which they sought leave to proceed on their first amended complaint, leave to amend the complaint, time in which to object to the magistrate judge's report and recommendation, and for a pre-trial and status conference. Such motion essentially sought reconsideration by the district court, but such undated motion does not appear to have been served upon opposing counsel. As such, it failed to toll the appeal period. See Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 282 (3d Cir.), cert. denied, 112 1989) (per curiam). The notice of appeal filed April 30, 1993 (appeal No. 93-3521) was filed within the appeal period. The April 23 motion was denied on July 14, 1993, and appellants appealed on August 10, 1993 (appeal No. 93-3960). Such order denying a motion seeking reconsideration of a district court's decision is not appealable. See Walker v. Mathews, 546 F.2d 814, 817 n. 1 (9th Cir. 1976); Peabody Coal Co. v. Local Union Nos. 1734, 1508 & 1548, UMW, 484 F.2d 78, 81 (6th Cir. 1973).
Accordingly, it is ORDERED that appeal No. 93-3960 is dismissed. However, the appeal in No. 93-3521, being timely, is not dismissed. Rule 8(a), Rules of the Sixth Circuit.
The Honorable Charles W. Joiner, Senior U.S. District Judge for the Eastern District of Michigan, Sitting by designation