Unpublished Disposition, 927 F.2d 609 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 927 F.2d 609 (9th Cir. 1991)

FEDERAL TRADE COMMISSION, Plaintiff-Appellee,v.MAGUI PUBLISHERS, INC., Defendant,andPierre Marcand, Defendant-Appellant.FEDERAL TRADE COMMISSION, Plaintiff-Appellee,v.Pierre MARCAND, Defendant-Appellant.

Nos. 89-56076, 90-55628.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 5, 1991.Decided Feb. 27, 1991.

Appeal from the United States District Court for the Central District of California, No. CV-89-3818-RSWL; Ronald W. Lew, District Judge, Presiding.

C.D. Cal.

AFFIRMED.

Before JAMES R. BROWNING, D.W. NELSON and REINHARDT, Circuit Judges.

MEMORANDUM* 

In Appeal No. 89-56076, Pierre Marcand appeals the grant of a preliminary injunction. The appeal was filed during the pendency of a motion to modify the preliminary injunction--a motion that was filed within ten days of the issuance of that injunction.1  Any motion, however labeled, which challenges the substantive correctness of an order within ten days after it is issued must be considered a Fed. R. Civ. P. 59(e) motion to alter or amend a judgment. Osterneck v. Ernst & Whinney, 109 S. Ct. 987, 990 (1989). Marcand's motion clearly falls within the Osterneck rule. Under Fed. R. App. P. 4(a) (4) (iii), an appeal made during the pendency of a Fed. R. Civ. P. 59(e) motion is void. Thus we are without jurisdiction over the appeal as originally filed. An appeal would still have been timely, however, if filed within sixty days after the motion to modify was denied.2  See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982). However, no further appeal was filed during that period.3  We therefore dismiss Appeal No. 89-56076 for lack of jurisdiction.

Subsequent to the expiration of the sixty days in which Marcand could have appealed from the denial of the Rule 59(e) motion, he filed a motion to reconsider the preliminary injunction. The district court denied the motion, ruling first that it lacked jurisdiction over a motion to reconsider because of the pendency of Appeal No. 89-56076, and ruling in the alternative that even if it had jurisdiction, it would deny the motion on the merits. Because Appeal No. 89-56076 was void, the district court did not lack jurisdiction over the motion. However, we affirm its denial of the motion on the merits. The district court found that the only "new" fact presented was the holding of a press conference by the FTC. This finding was not clearly erroneous, although we note that the press conference was held prior to the issuance of the preliminary injunction. In any event, the court did not abuse its discretion in concluding that the FTC's actions constituted insufficient cause to warrant reconsideration of the injunction.

Finally, the "new issues" raised by Marcand were not so "inextricably intertwined" with the merits of the underlying preliminary injunction as to afford us jurisdiction to review the underlying order. See Sierra On-Line, Inc. v. Phoenix Software, Inc, 739 F.2d 1415, 1418 n. 4 (9th Cir. 1984). Accordingly, we must reject his appeal.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

The preliminary injunction was issued on August 28, 1989. The motion to modify was filed on September 1, 1989. Appeal No. 89-56076 was filed on September 19, 1989

 2

The motion to modify was denied on November 1, 1989

 3

At oral argument, appellant's counsel urged that we should exercise jurisdiction over the appeal because Marcand had been misled by the court, citing Derks v. Dugger, 835 F.2d 778 (11th Cir. 1987). That case is inapplicable. There the Eleventh Circuit said:

In this case the district court, in the same order which denied Derks' request for reconsideration and motion to vacate, "granted" his notice of appeal and permitted Derks to proceed on appeal in forma pauperis. Derks, as a pro se litigant, alleges that he reasonably relied upon the action of the district court and believed that no new notice of appeal was necessary. We hold that, under the unique circumstances presented in this case, Derks' "request for reconsideration", filed on August 13, 1987, or his "motion to vacate", filed on August 18, 1987, tolled the time for appealing from the denial of his request for a preliminary injunction. The appeal in this case should not be dismissed because the plaintiff was misled by the district court's September 1, 1987, order into believing that his premature notice of appeal was effective.

Id, at 779.

Here, the district court took no action during the period ending 60 days after it denied Marcand's September 1, 1989, motion which indicated a belief that the September 19, 1989, appeal was valid or that could have led Marcand to that conclusion.

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