Agristor Leasing, a Wisconsin Partnership James Saylor Karen Saylor, Individually and D/B/A Udder Nonsense Dairy, Counter-Plaintiffs, and Third Party Cross v. Hermitage Harvistore Systems, Incorporated Chuck Dowdy A.O. Smith Harvistore Products,

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Filed: 1988-06-14 Precedential Status: Non-Precedential Citations: 849 F.2d 608 Docket: 88-5279
  849 F.2d 608 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishingres judicata, estoppel, or the law of the case and requiresservice of copies of cited unpublished dispositions of the SixthCircuit.AGRISTOR LEASING, a Wisconsin Partnership; Plaintiff,James Saylor; Karen Saylor, Individually and d/b/a UdderNonsense Dairy, Defendants, Counter-Plaintiffs,and Third Party Plaintiffs-AppelleesCross- Appellants,v.HERMITAGE HARVISTORE SYSTEMS,INCORPORATED; Chuck Dowdy;A.O. Smith Harvistore Products, Inc., Third-PartyDefendants-Appellees,A.O. Smith Harvistore Products, Inc., Third-Party DefendantAppellant Cross- Appellee.  Nos. 88-5279, 88-5315. United States Court of Appeals, Sixth Circuit.  June 14, 1988. ORDER Before BOYCE F. MARTIN, Jr., MILBURN and RALPH B. GUY, Jr.,Circuit Judges.1Defendants in this private civil diversity action appeal from the district court'sorders dated March 1 and March 9, 1988 denying all defendants' motions for new trial. Counter-plaintiffs' have now filed a notice of cross-appeal from thedenial of defendants' subsequent Rule 60(b) motion. Defendants have filed a  motion to dismiss the cross-appeal for lack of jurisdiction. Counter-plaintiffs'have filed no response.2Following the district court's entry of final judgment on June 24, 1987,defendants Hermitage Harvestore (H.H.), Chuck Dowdy (C.D.), and A.O.Harvestore (A.O.S.H.P.I.) all filed motions for new trial or motions to vacatethe judgment. Those motions were denied by an order dated August 6, 1987,from which all three of the abovementioned defendants filed notices of appealon September 1, 1987 (A.O.S.H.P.I.) and September 4, 1987, (H.H. and C.D.),respectively. Jurisdiction transferred to the court of appeals at that time. S. & E.Shipping Corp. v. Chesapeake & Ohio RRy. Co., 678 F.2d 636 (6th Cir.1982).3Counter-plaintiffs then moved district court for an extension of time withinwhich to file their notice of cross-appeal. That motion was denied. The counter- plaintiffs then moved the district court for a judicial inquiry to investigate the possibility of juror misconduct. District court granted that motion and saidinquiry was held on January 29, 1988. All three defendants made Rule 60(b)motions following the conclusion of the judicial inquiry. These motions weredenied on February 8, 1988. It is from the February 8 order that the counter- plaintiffs filed their notice of cross-appeal.4Timely notices of appeal were filed by each defendant respectively, from theMarch 9, 1988 order denying the motions for new trial. It is well settled in thisCircuit that the filing of a notice of appeal divests the district court of  jurisdiction and transfers jurisdiction to the court of appeals. S. & E. ShippingCorp. v. Chesapeake & Ohio RRy. Co., supra. Once jurisdiction has transferredto this Court, if the district judge is disposed to grant a Fed.R.Civ.P. Rule 60(b)motion that has been filed with district court, the judge may enter an order socertifying. The moving party may then file a motion to remand with the court of appeals. First National Bank of Salem, Ohio v. Hirsch, 535 F.2d 343 (6thCir.1976). See Cochran v. Birkel, 651 F.2d 1219 (6th Cir.1981), cert. denied454 U.S. 1152 (1982). Absent a remand by the appellate court, a district courtmay not decide a Rule 60(b) motion to vacate judgment after notice of appealhas been filed, Cochran, supra. See, S. & E. Shipping Corp., supra at note 10;Hirsch, supra at 343.5A motion filed pursuant to Rule 60(b) does not toll the time for filing a noticeof appeal, Rule 4(a)(4), Federal Rules of Appellate Procedure, nor does anappeal from a ruling on a Rule 60(b) motion bring up the underlying judgmentfor review. Browder v. Director, Department of Corrections, 434 U.S. 257, 263n. 7 (1978). The counter-plaintiffs' motion for extension of time to file a noticeof cross-appeal was denied. No appeal was taken from the denial of the motion  for extension. Absent a timely cross-appeal, counter-plaintiffs cannot nowappeal the denial of a Rule 60(b) motion and hope to bring up for review theunderlying judgment in an attempt to cure this defect. The notice of appeal filedSeptember 1, 1987 divested the district court of jurisdiction. Accordingly,6It is ORDERED that the motion to dismiss be and hereby is granted.
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