01-3532 Florian v. Sequa Corp., et al.

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“This is a procedurally botched appeal; we are publishing our decision in an effort to head off a repetition of the problem that gave rise to the botch… The district court entered judgment in favor of the defendants. Within 10 days, the plaintiffs filed a motion to reconsider so much of the judgment as dismissed the state law claims. That was a motion governed by Fed. R. Civ. P. 59(e) and thus technically a motion to alter or amend the judgment; its mislabeling as a motion for reconsideration was without significance. Although the motion was filed in September of last year, the district court has yet to rule on it. In their docketing statement filed in this court in October shortly after the filing of the notice of appeal in the district court, the plaintiffs asserted that this court had jurisdiction of the appeal. They noted the pending motion to reconsider and added that they were ‘not appealing’ the decision dismissing their state law claims and ‘are appealing an issue not involved in’ the motion to reconsider… [A] notice of appeal filed before the district court rules on a Rule 59(e) motion does not take effect until the motion is disposed of. Fed. R. App. P. 4(a)(4)(A)(iv), (B)(i). Until then the appeal is suspended-dormant-unripe. Otis v. City of Chicago, 29 F.3d 1159, 1166 (7th Cir. 1994) (en banc); United Computer Systems, Inc. v. AT & T Corp., No. 00-55768, 2002 WL 1088549, at *3 (9th Cir. May 21, 2002); Miles v. General Motors Corp., 262 F.3d 720, 722-23 (8th Cir. 2001); Ibrahim v. District of Columbia, 208 F.3d 1032, 1034 (D.C. Cir. 2000); Committee Note to 1993 Amendment of Rule 4. Yet on February 20, a motions panel of this court, without explanation, denied the motion for a stay. This was a mistake. As there was no suggestion of an emergency, further briefing should have been held in abeyance until and unless the motion to reconsider was ruled on by the district court. See Hodge v. Hodge, 269 F.3d 155, 157 n. 4 (2d Cir. 2001)(per curiam).”

Dismissed.

Appeal from the United States District Court for the Northern District of Illinois, Gottschall, J., Per Curiam.