Opinion
No. 10-0528-cv.
May 25, 2010.
Appeal from a judgment of the United States District Court for the Southern District of New York (Robert W. Sweet, Judge).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal be DISMISSED.
FOR APPELLANT: DANIEL STUART ALTER, Alter Alter LLP, New York, NY.
FOR APPELLEES: PAUL M. FAKLER, Moses Singer LLP, New York, NY.
Plaintiff Esbin Alter, LLP appeals from the February 4, 2010 order of the District Court granting, in part, plaintiff's request for a preliminary injunction. Plaintiff filed a notice of appeal on February 17, 2010. After plaintiff filed its notice of appeal, defendant timely filed a motion pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. That motion is currently pending before the District Court. We assume parties' familiarity with the facts and procedural history of this case.
First, we consider whether we have jurisdiction to consider this appeal. Rule 4(a)(4)(B)(i) of the Federal Rules of Appellate Procedure states that "[i]f a party files a notice of appeal after the court announces . . . a judgment — but before it disposes of [a Rule 59(e) motion]"the notice becomes effective to appeal a judgment or order . . . when the order disposing of the last such remaining motion is entered." See also New Windsor Volunteer Ambulance Corps., Inc. v. Meyers, 542 F.3d 101, 120 (2d Cir. 2006) (stating that "the notice of appeal simply does not become effective before an order disposing of [the pending Rule 59] motion has been entered"). Because the notice of appeal is not yet effective, we do not have jurisdiction to consider this appeal. See Hertzner v. Henderson, 292 F.3d 302, 303-04 (2d Cir. 2002).
Accordingly, this appeal is DISMISSED without prejudice to plaintiff filing a second notice of appeal upon the District Court's resolution of the pending Rule 59(e) motion.