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Click here for the full text of this decision FACTS:International Paper was sued for racial discrimination in October 2002. The plaintiffs served IP in January 2003, but IP moved to dismiss on failure to properly serve. The district court granted the motion and dismissed the case on April 28. On May 14, 2003, plaintiffs filed a motion for reconsideration, similar to a Federal Rule of Civil Procedure 60(b) motion (motion for relief from a judgment or order); the plaintiffs also filed a notice of appeal on May 27. While the notice of appeal was pending, the district court on June 18 reversed its earlier ruling, deciding that service of process had been proper, and vacating its earlier ruling. The district court did not ask for leave to make its ruling or request this court to remand the cause. The plaintiffs then filed a motion with this court to abandon their appeal. This court dismissed the appeal on June 26, but IP timely appealed the motion to reconsider on July 18. On appeal, IP asserts that once plaintiffs filed their notice of appeal, the district court did not have jurisdiction to grant the plaintiffs’ previously submitted Rule 60(b) motion. The plaintiffs counter that this court does not have jurisdiction over IP’s appeal because the order granting the Rule 60(b) motion is not a final judgment. HOLDING:Order granting reconsideration vacated. The court first determines that the district court’s order granting reconsideration of its dismissal is not a final order but is nevertheless appealable. Ordinarily a ruling under Rule 60 is interlocutory, an appeal will lie when the jurisdiction of the lower court to enter a judgment is challenged. That is the case here, where IP says the district court did not have jurisdiction over the plaintiffs’ motion to reconsider. The court then looks at the district court’s jurisdiction over the case. Once the notice of appeal has been filed, the district court may consider or deny a Rule 609b) motion, filed more than 10 days after entry of judgment, but it no longer has jurisdiction to grant such a motion while the appeal is pending. Without leave from the appeals court, the district court is without jurisdiction and cannot grant the motion. Here, the case was dismissed on April 28. The plaintiffs filed a motion for reconsideration on May 14, and a notice of appeal on May 27. No leave of this court was either requested or granted, and the plaintiffs did not make a motion for this court to remand. Consequently, the district court did not have jurisdiction to grant the plaintiffs’ Rule 60(b) motion filed after its notice of appeal. The plaintiffs say they were forced to file a notice of appeal while the district court was considering their Rule 60(b) motion, but no precedent says that this force is an exception to the general rule divesting district courts of jurisdiction upon the filing of a notice of appeal. Furthermore, the district court’s ability to grant or entertain a Rule 60(b) motion is not at odds with this court’s interpretation since nothing prevents the district court from making a ruling if it also has leave of an appeals court to do so. The court finds the statement in a U.S. Supreme Court case � that the pendency of an appeal does not affect the district court’s power to grant Rule 60 relief � is in seeming support of the plaintiffs’ claim, the statement was made in dicta in Stone v. INS, 115 S.Ct. 1537 (1995), and did not in any way involve Rule 60(b). Though the court has never considered the effect of Stone on this court’s established procedure for Rule 60(b) motions filed more than 10 days after entry of a judgment when an appeal is pending, other courts have explicitly recognized that the statement in Stone is dicta and have not modified their similar approaches. OPINION:Garwood, Circuit Judge; Garwood, Higginbotham and Smith, JJ.

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