Justia Federal District Court Opinions

Kearney appeals pro se from the district court's judgment dismissing his civil rights complaint without prejudice. This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. This Court finds that there is a jurisdictional defect in the appeal.

Kearney filed a timely motion to vacate after the judgment was entered. This motion extended the time in which to file a notice of appeal. Rule 4(a)(4), Federal Rules of Appellate Procedure. However, Kearney filed his notice of appeal while the motion to vacate judgment was still pending. Such a notice of appeal has no effect. Rule 4(a)(4), Federal Rules of Appellate Procedure; Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 60-61 (1982). Therefore, Kearney's appeal is jurisdictionally defective.

The filing of a timely notice of appeal is mandatory and jurisdictional, and the Court of Appeals cannot waive the jurisdictional requirement. Browder v. Director, Department of Corrections, 434 U.S. 257, 264 (1978). So Kearney's appeal is sua sponte dismissed for lack of jurisdiction under Rule (d)(1), Rules of the Sixth Circuit.