Safeco Insurance Company v. David Kersh

865 F.2d 260 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. SAFECO INSURANCE COMPANY, Plaintiff-Appellee, v. David KERSH, Defendant-Appellant. No. 88-1812. United States Court of Appeals, Sixth Circuit. Dec. 19, 1988. — 1 — E.D.Mich. — 2 — DISMISSED. — 3 — Before NATHANIEL R. JONES and BOYCE MARTIN, Jr., Circuit Judges, and JOHN FEIKENS, District Judge.* ORDER — 4 — This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. — 5 — A review of the record indicates that the district court entered an order denying the motion for new trial brought under Fed.R.Civ.P. 60(b) on March 31, 1988. Defendant appealed that order on April 13, 1988 (appeal no. 88-1402). On April 27, defendant filed and served a motion to set aside the March 31, 1988, order. The April 27 motion was treated by the district court as a motion to reconsider the March 31, 1988, order and denied by order filed June 28, 1988. Defendant appealed the June 28 order on July 26, 1988 (appeal no. 88-1812). — 6 — This court lacks jurisdiction to review the merits of appeal no. 88-1812. An order denying a motion for reconsideration is not appealable. Walker v. Mathews, 546 F.2d 814, 817 n. 1 (9th Cir.1976). The appeal from an order denying reconsideration can be treated as an appeal from the final judgment only when the motion tolled the appeals period. Because the motion for reconsideration was not served within 10 days from the order denying Rule 60(b) relief as provided by Fed.R.Civ.P. 59(e) and computed pursuant to Fed.R.Civ.P. 6(a), it failed to toll the appeals period. See Fed.R.App.P. 4(a)(4). — 7 — It is ORDERED that appeal no. 88-1812 be and hereby is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit. Footnotes [-s] * The Honorable John Feikens, U.S. District Judge for the Eastern District of Michigan, sitting by designation