FLORIDA WOMEN'S MEDICAL CLINIC, INC., ET AL., PLAINTIFFS-APPELLANTS,
v.
JIM SMITH, ETC., ET AL., DEFENDANTS-APPELLEES
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An appeal must be dismissed for lack of jurisdiction when the notice of appeal was filed before the disposition of a motion to alter or amend judgment, and no new notice was filed after the disposition.
Appellants filed a notice of appeal before the trial court ruled on their motion to alter or amend judgment. The trial court later ruled on the motion…
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PER CURIAM:
A few days before the oral argument in this case the appellees filed their motion to dismiss the appeal on the ground that this Court lacks jurisdiction by reason of F.R. A.P. Rule 4(a)(4). Since the time of filing a notice of appeal affects the jurisdiction of this Court, Williams v. Bolger, 633 F. 2d 410 (5th Cir.1980), we are required to notice such a defect if it exists.
The chronology affecting this ground of appeal follows. The trial court entered the order appealed from on March 12,1982. On March 25, 1982, appellants filed their motion to alter or amend judgment and memorandum in support thereof. On April 12, 1982, appellants filed their notice of appeal of the March 12 order. On July 15, 1982, the trial court ruled on the motion to alter or amend judgment by granting two requests contained in the motion and denying it in other respects. Appellants filed no subsequent notice of appeal.
The basis of appellees’ motion is Rule 4(a)(4) of the Federal Rules of Appellate Procedure. This Rule provides in part:
A notice of appeal filed before the disposition of any of the above motions [including a Rule 59 motion to alter or amend judgment] shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.
The Supreme Court has ruled on this precise question in Griggs v. Provident Consumer Discount Co., — U.S. -, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). The Court there stated: Under the plain language of the current rule, a premature notice of appeal “shall have no effect;” a new notice of appeal “must be filed.” In short, it is as if no notice of appeal were filed at all and if no notice of appeal was filed at all, the Court of Appeals lacks jurisdiction to act.
See also U.S. v. Valdosta-Lowndes County Hospital Authority, 668 F. 2d 1177 (11th Cir. 1982) where this Court stated:
Briefly stated, F.R.A.P. 4(a)(4) nullifies the effect of any notice of appeal filed before the disposition of specified post-trial motions and requires that a new notice of appeal be filed after disposition of these motions.
668 F. 2d at 1178.
This Court has most recently held that the filing of a Rule 59 motion brings Rule 4(a)(4) into play even though a Rule 60 motion is also filed simultaneously. Gibbs v. Maxwell House, a Division of General Foods Corp., 701 F. 2d 145 (11th Cir.1983).
Appellant contends that it actually filed a notice of appeal in a timely manner, because its brief, subsequently filed, set forth all of the facts which normally would be contained in a notice of appeal. Appellant cites no authority for the proposition that a court may eliminate entirely the requirement for the filing of a notice of appeal. Appellant’s brief, filed in June, could not refer to the order which is the final order in the trial court, dated July 15.
It is clear that under the provisions of F.R.A.P. 4(a)(4) the appeal must be dismissed.
DISMISSED.
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VAN WYK EL Paso Inv., Inc. v. Dollar Rent-A-Car Sys., Inc., 719 F.2d 806 (5th Cir. 1983)…read as no more than steps in the perfection of the prematurely noticed appeal. For example, one court has recently rejected an appellate brief as a substitute for notice of appeal in a civil case. See Florida Women’s Medical Clinic, Inc. v. Smith, 706 F. 2d 1172, 1173 (11th Cir.1983). A liberal construction of the requirements of Rule 3(a) cannot be allowed to nullify the plain provision of Rule 4(a)(4) that a premature notice of appeal “shall have no effect.” In light of the 1979 amendments which put Rul…
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United States v. Cooper, 876 F.2d 1192 (5th Cir. 1989)…circuit. Indeed, we have found only two cases addressing the issue. In Frace v. Russell, 341 F. 2d 901, 903 (3d Cir.1965), the Third Circuit accepted an appellate brief in lieu of a notice of appeal. In Florida Women’s Medical Clinic, Inc. v. Smith, 706 F. 2d 1172, 1173 (11th Cir.1983), on the other hand, the Eleventh Circuit refused to accept an appellate brief as a notice of appeal, giving two reasons for its decision: Appellant contends that it actually filed a notice of appeal in a timely manner, because…
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Smith v. Galley, 919 F.2d 893 (4th Cir. 1990)…the two into one would, as the Eleventh Circuit implied, “eliminate entirely the requirement for the filing of a notice of appeal.” United States v. Cooper, 876 F. 2d 1192, 1196 (5th Cir.1989) (quoting Florida Women’s Medical Clinic, Inc. v. Smith, 706 F. 2d 1172, 1173 (11th Cir.1983)). Contra Frace v. Russell, 341 F. 2d 901 (3d Cir.), cert. denied, 382 U.S. 863, 86 S.Ct. 127, 15 L.Ed.2d 101 (1965). We agree with the Fifth and Eleventh Circuits and we conclude that, although we should and do afford pro se li…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Griggs v. Provident Consumer Disc. Co., 459 U.S. 56 (U.S. 1982)
- Ellis Williams v. Bolger, 633 F.2d 410 (5th Cir. 1980)
- United States v. Valdosta-Lowndes Cnty. Hosp. Auth., 668 F.2d 1177 (11th Cir. 1982)
- Gibbs v. Maxwell House, 701 F.2d 145 (11th Cir. 1983)