Opinion
No. 83-3187.
Submitted to Motions Panel August 3, 1983.
Decided August 18, 1983.
Jimmy B. Reed, pro se.
Rolf H. Scheidel, Shumaker, Loop Kendrick, Geoffrey H. Davis, City of Toledo Law Dept., Toledo, Ohio, for defendants-appellees.
Before ENGEL, KENNEDY and MARTIN, Circuit Judges.
This matter is before the Court upon consideration of appellant's response to this Court's show cause order and request for appointment of counsel. Appellees have filed a memorandum in opposition to the appellant's response.
It appears from the record that the judgment was entered March 25, 1982. A motion to amend was filed on April 5, 1982. The certificate of service indicates that the motion was served on April 2, 1982. This motion tolled the appeals period if it was timely served on April 2, 1982. Rule 4(a)(4), Federal Rules of Appellate Procedure. The motion to amend was denied on June 23, 1982. A motion for reconsideration was filed on July 6, 1982. This successive motion where the first motion was not granted did not toll the appeals period. We agree with the reasoning of Dixie Sand and Gravel Co. v. TVA, 631 F.2d 73 (5th Cir. 1980). See also Wansor v. George Hantscho Co., Inc., 570 F.2d 1202 (5th Cir. 1978), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978). The motion to reconsider was denied on February 28, 1983. Appellant filed a notice of appeal on March 11, 1983 and amended it on March 18, 1983. The notice of appeal was 231 days late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure.
Appellees assert, however, that the notice of appeal was 323 days late. They allege that the motion to amend filed on April 5, 1982 was not served until April 6, 1982. If this is true, the motion to amend would not have been timely served and the notice of appeal would have been due on or before April 26, 1982.
It is therefore ORDERED that appellant's motion for appointment of counsel be denied.
It is further ORDERED that the appeal be and it hereby is dismissed for lack of jurisdiction due to a late filed notice of appeal. Rule 9(d)(1), Rules of the Sixth Circuit.