Unpublished Disposition, 914 F.2d 262 (9th Cir. 1989)

No. 89-15188.

United States Court of Appeals, Ninth Circuit.

Before TANG and BEEZER, Circuit Judges, and STEPHENS,^*  District Judge.

MEMORANDUM^** 

Defendant Hesselroth appeals the district court's denial of his motion for reconsideration. The court had refused to reconsider its denial of defendant's summary judgment motion based on a qualified immunity defense. We affirm.

BACKGROUND

Kirk brought this action against Inspector Hesselroth of the San Francisco Police Department ("SFPD"), the Chief of Police of SFPD, and the City and County of San Francisco, under 42 U.S.C. § 1983 seeking damages for his unlawful arrest. The parties filed cross-motions for summary judgment. On June 26, 1988, the district court held that Kirk had been arrested without a search warrant and without probable cause, in violation of his Fourth Amendment rights. However, the court granted summary judgment as to the City and County of San Francisco, on the grounds that they were not grossly negligent in their conduct. As to Hesselroth's summary judgment motion, the court found that issues of fact remained concerning his liability.

Both parties moved the court to reconsider this conclusion on December 28, 1988. The district court heard the parties' arguments, but on January 26, 1989, came to the same conclusion that it had reached earlier. Hesselroth filed a notice of appeal on January 26, 1989.

DISCUSSION

Hesselroth's appeal raises two issues; first, which district court decision is properly before this court, and, second, did the district court properly reach its conclusions.

I. TIMELINESS OF HESSELROTH'S NOTICE OF APPEAL

Under Federal Rules of Appellate Procedure Rule 4(a) (1), a party appealing from a district court's decision must file a notice of appeal within 30 days of entry of the judgment or the order from which appeal is taken. Fed. R. App. P. 4(a) (1). The district court may extend the time for filing notice an additional 30 days upon a showing of excusable neglect or good cause. Id. at 4(a) (5). However, compliance with this rule is jurisdictional and is a prerequisite to the exercise of appellate jurisdiction. Browder v. Director, Dept. of Corrections of Illinois, 434 U.S. 257, 264 (1978); Whittaker v. Whittaker Corp., 639 F.2d 516, 520 (9th Cir.), cert. denied, 454 U.S. 1031 (1981).

In general, a party may appeal only from a final judgment. However, the denial of a qualified immunity defense is immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). In the present case, the district court's order denying Hesselroth's qualified immunity defense was entered on June 30, 1988. Hesselroth filed a notice of appeal on January 26, 1989. Even though a district court could not grant an extension of five months to the notice period, Hesselroth did not file for a 30-day extension in that period. Therefore, Hesselroth cannot appeal the district court's decision regarding his qualified immunity defense.

Hesselroth asserts that his December 28, 1988 motion for reconsideration reinstated the notice period for the summary judgment motion.

First, a district court has no authority to extend the period for filing notice beyond that allowed under Rule 4(a) (1). Felix v. Cardwell, 545 F.2d 92, 93 (9th Cir. 1976), cert. denied, 430 U.S. 910 (1977). Therefore, the district court's reconsideration of a decision, even where the court expressly reaffirms that earlier decision, cannot begin a new appeal period for that decision.

Second, a Rule 60 motion does not toll the notice of appeal period. A "motion for reconsideration" may be either a Rule 59 motion or a Rule 60 motion. See Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985). Under Rule 4(a), if a party moves under Rule 59, "the time for appeal for all parties shall run from the entry of the order denying [a Rule 59 motion for] a new trial or granting or denying any other such motion." Fed. R. App. P. 4(a) (4) (iv). However, a Rule 59(e) motion for reconsideration must be filed within 10 days of the entry of the order. Fed. R. Civ. P. 59(e). Hesselroth's motion was filed on December 28, 1988, over 5 months after entry of order. Therefore, Hesselroth's motion must be considered a Rule 60(b) motion. This motion has no effect on the Rule 4(a) (1) notice of appeal period.

Third, Hesselroth cites cases from the Sixth Circuit where the Court of Appeals has reviewed the underlying motion denying a qualified immunity defense even though the time for appeal has expired. See Hudson v. Edmonson, 848 F.2d 682 (6th Cir. 1988). See also Poe v. Haydon, 853 F.2d 418 (6th Cir. 1988), cert. denied, 109 S. Ct. 788 (1989). However, the law in the Ninth Circuit is clear that the provisions of Rule 4(a) cannot be avoided. If these provisions are not followed, the Court of Appeals does not have jurisdiction. See Swimmer v. I.R.S., 811 F.2d 1343, 1344-45 (9th Cir. 1987); Cel-A-Pak v. California Argric. Labor Relations Bd., 680 F.2d 664, 666-67 (9th Cir.), cert. denied, 459 U.S. 1071 (1982). See also Backlund, 778 F.2d at 1388; Rodgers v. Watt, 722 F.2d 456, 458-59 (9th Cir. 1983); Selph v. Council of City of Los Angeles, 593 F.2d 881, 882 (9th Cir. 1979).

Following the foregoing analysis, the only district court decision properly before this court on appeal is the district court's denial of Hesselroth's motion for reconsideration.

A district court's decision to deny a party's motion for reconsideration under Rule 60(b) is reviewed for an abuse of discretion. Plotkin v. Pacific Tel. & Tel. Co., 688 F.2d 1291, 1292 (9th Cir. 1982). See also Backlund, 778 F.2d at 1388.

Under Rule 60(b), the district court may relieve a party from a final judgment or order for the following reasons:

1) mistake, inadvertence, surprise, or excusable neglect;

2) newly discovered evidence;

3) fraud, misrepresentation, or other misconduct by the adverse party;

4) the judgment is void;

5) the judgment has been satisfied; or

6) any other reason justifying relief from the operation of the judgment.

Fed. R. Civ. P. 60(b). In the present case, the parties brought none of the first five reasons to the attention of the district court.

Instead, upon motion for reconsideration, the district court reviewed its initial decision, and reached the same conclusion that issues of fact exist as to whether defendant is entitled to a qualified immunity defense. The district court held that as a matter of law, Kirk's constitutional rights were violated. However, the district court also found that on the existing record, it could not determine as a matter of law whether Hesselroth's conduct was reasonable. See Guerro v. Sutton, 783 F.2d 1371, 1375 (9th Cir. 1986) (reasonable reliance on other officer obtaining search warrant). The reasonableness of a belief that conduct is lawful, viewed in light of clearly established law, is a question for the trier of fact. Schlegel v. Bebant, 841 F.2d 937, 945 (9th Cir. 1988). We find no error in the district court's statement of the applicable law.

Given that the parties tendered no new grounds for reconsideration under Rule 60(b), and that we identify no error of law, the district court's denial of Hesselroth's motion for reconsideration was not an abuse of discretion. The order of the district court is AFFIRMED.