Hamilton County Bd. of Educ. v. Asbestospray Corp.

911 F.2d 732 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. HAMILTON COUNTY BOARD OF EDUCATION, Plaintiff-Appellant, v. ASBESTOSPRAY CORPORATION, Basic, Inc., Dana Corporation; Keene Corporation, Pfizer, Inc., The Celotex Corporation, U.S. Mineral Products Company, Defendants, National Gypsum Company, United States Gypsum Company, W.R. Grace and Company, Defendants-Appellees. No. 90-5877. United States Court of Appeals, Sixth Circuit. Aug. 20, 1990. — 1 — Before NATHANIEL R. JONES and DAVID A. NELSON, Circuit Judges, and SILER, Chief District Judge* ORDER — 2 — The plaintiff has filed a notice of appeal from the district court's "Judgments dismissing this action based upon its grant of the Motion for Summary Judgment of defendant United States Gypsum Company." An order to show cause why the appeal should not be dismissed as premature was entered on July 18, 1990. The plaintiff has responded. — 3 — The district court's docket sheet indicates that on May 21, 1990, it entered an order and a memorandum which granted the motion for summary judgment filed by the defendant, United States Gypsum Company. On May 25 the plaintiff filed a motion to alter or amend that judgment. On June 4 the district court entered an "Agreed Order" that the case was likewise dismissed on the merits as to the remaining two defendants, National Gypsum Company and W.R. Grace & Co. The plaintiff filed a notice of appeal from the May 21st order and memorandum and June 4 order while its motion to alter or amend remained pending. — 4 — Generally, a motion to alter or amend filed within ten days of a judgment tolls the time for appeal of the judgment. See Fed.R.App.P. 4(a)(4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam). A notice of appeal filed prior to the disposition of such a motion is of no effect. Id. The plaintiff asserts that the motion to alter or amend related only to the May 21 memorandum and a single defendant, United States Gypsum Company. Nevertheless, a timely motion to alter or amend addressed to a portion of the judgment tolls the time for appeal of the entire judgment. F.E.L. Publications Ltd. v. Catholic Bishop of Chicago, 739 F.2d 284 (7th Cir.1984) (per curiam); see also Marrical v. Detroit News, Inc., 805 F.2d 169, 171 (6th Cir.1986) (per curiam). Accordingly, this appeal is premature. — 5 — It is therefore ORDERED that the appeal is dismissed sua sponte without prejudice to the plaintiff's right to perfect a timely appeal following the district court's ruling on the pending motion. Rule 9(b)(1), Local Rules of the Sixth Circuit. Footnotes [-s] * The Honorable Eugene E. Siler, Jr., Chief District Judge for the Eastern District of Kentucky, sitting by designation