Unpublished Disposition, 855 F.2d 861 (9th Cir. 1987)

MEMORANDUM^** 

James Jones appeals the district court's dismissal of his personal injury complaint for want of prosecution, and the denial of his motion to reconsider. Jones contends that the district court abused its discretion in dismissing his complaint for failure to prosecute. The appeal is dismissed for lack of jurisdiction.

On February 5, 1987, the district court granted Hyatt and Otis's motion and dismissed the case with prejudice. Judgment was entered on February 6, 1987. On March 9, 1987, Jones filed a motion to reconsider the order dismissing his case. The court denied his motion on April 6, 1987. On April 27, 1987, Jones filed a notice of appeal.

The court of appeals lacks jurisdiction to decide an appeal if the notice of appeal is not timely filed. See Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 264 (1978). A party must file a notice of appeal with the clerk of the district court within 30 days after the date of entry of the judgment from which the party is appealing. Fed. R. App. P. 4(a) (1). A timely motion under Fed. R. Civ. P. 59 tolls the running of the 30-day period until entry of a district court order disposing of the Rule 59 motion, at which time the full period begins to run anew. Fed. R. App. P. 4(a) (4); Saunders v. Cabinet Makers and Millmen, Local 721, 549 F.2d 1216 (9th Cir. 1977). A Rule 59 motion, which may take the form of a motion for reconsideration, Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983),¹  must be filed within 10 days after entry of judgment. Fed. R. Civ. P. 59(e).

The district court judgment dismissing Jones's complaint was entered on February 6, 1987, and Jones did not file his notice of appeal until April 27, 1987, well beyond the close of the 30-day statutory period. Jones did not file his motion to reconsider until March 9, 1987, long after the 10-day period for filing such a motion. See Fed. R. Civ. P. 59(e). Thus, the motion to reconsider did not toll the Rule 4(a) (1) 30-day period. In fact, Jones filed the motion for reconsideration more than 30 days after the district court dismissed his complaint. Therefore, Jones's filing of his notice of appeal was untimely and as a result this court lacks jurisdiction over his appeal. See Browder, 434 U.S. at 264; Saunders, 549 F.2d at 1217.

DISMISSED.