911 F.2d 734
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Arnold J. SOUTHERS, Petitioner-Appellant,
v.
Jack MORGAN, Warden, et al., Respondents-Appellees.
No. 90-5641.
United States Court of Appeals, Sixth Circuit.
Aug. 20, 1990.
Before RYAN and ALAN E. NORRIS, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
ORDER
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.
A review of the documents before the court indicates that the final order was entered on November 30, 1989. The respondent served a Fed.R.Civ.P. 59 motion to reconsider on December 5, 1989, which was within ten days of entry of judgment as computed pursuant to Fed.R.Civ.P. 6(a). Such motion tolled the appeal period. See Fed.R.App.P. 4(a)(4); Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir.1988), cert. denied, 109 S. Ct. 2436 (1989). Thereafter, petitioner served a petition for rehearing of the court's order on December 18, 1989, and served another motion to reconsider on April 2, 1990. On April 25, 1990, the district court denied petitioner's motion for reconsideration. On May 2, 1990, petitioner filed his notice of appeal. However, the respondent's motion for reconsideration tolled the appeal period for all parties. See Marrical v. Detroit News, Inc., 805 F.2d 169, 171 (6th Cir.1986) (per curiam). Fed.R.App.P. 4(a)(4) provides that a notice of appeal filed before the disposition of a timely Rule 59 motion shall have no effect. A timely notice of appeal is mandatory and jurisdictional. Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The district court has not ruled on the respondent's motion to reconsider.
Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.
