Leader National Insurance Company v. Industrial Indemnity Insurance Company, a California Corporation
Opinion
Opinion
Appellee has filed a motion to dismiss appeal no. 93-35921 for lack of jurisdiction. Appellee contends that the notice of appeal was filed during the pendency of a timely Fed.R.Civ.P. 59 motion to amend the judg ment, and, therefore, under the Appellate Rules in effect at the time, the notice of appeal is a nullity. See Fed.R.App.P. 4(a)(4); Griggs v. Provident Consumer Discount, 459 U.S. 56, 60 , 103 S.Ct. 400, 403 , 74 L.Ed.2d 225 (1982).
Effective December 1, 1993, however, the applicable provisions of Rule 4(a)(4) were amended. Rule 4(a)(4) now provides that “[a] notice of appeal filed after announcement or entry of the judgment but before disposition of any of the ... [specified post-judgment] motions is ineffective to appeal from the judgment or order, or part thereof, specified in the notice of appeal, until the date of the entry of the order disposing of the last such motion outstanding.” Fed.R.App.P. 4(a)(4). Thus, a notice of appeal filed while a Fed.R.Civ.P. 59 motion is pending is no longer a nullity, but, rather, is merely held in abeyance until the motion is resolved. Id.; Burt v. Ware, 14 F.3d 256, 258 (5th Cir.1994) (per curiam).