Cornelius Tucker, Jr., Plaintiff-appellant, v. Wanda J. Garrett, Defendant-appellee, 16 F.3d 412 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 16 F.3d 412 (4th Cir. 1994)

Submitted Jan. 20, 1994. Decided Feb. 7, 1994

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh.

Cornelius Tucker, appellant Pro Se.



Before WIDENER, WILKINS, and HAMILTON, Circuit Judges.


Appellant noted this appeal from the district court's judgment before the court disposed of a then-pending timely motion to alter or amend that judgment. Under Fed. R. App. P. 4(a) (4), a notice of appeal filed before disposition of a timely Fed. R. Civ. P. 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 for lack of jurisdiction. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982).

Accordingly, we dismiss the appeal as premature. 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.