Unpublished Disposition, 936 F.2d 577 (9th Cir. 1990)

MEMORANDUM^** 

Albert R. Garcia, Jr., a Nevada state prisoner, appeals pro se the district court's summary judgment in favor of the defendants in his 42 U.S.C. § 1983 action. The district court granted summary judgment under Local Rule of Practice 140-6 of the United States District Court for the District of Nevada ("Local Rule") based on Garcia's failure to timely file an opposition to the defendants' motion for summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand.

* Jurisdiction

"The requirement of a timely notice of appeal is mandatory and jurisdictional." Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 386 (9th Cir. 1988) (citation omitted). A timely motion pursuant to Fed. R. Civ. P. 59(e) renders a notice of appeal filed before disposition of the motion a nullity. See Tripati v. Henman, 845 F.2d 205, 206 (9th Cir. 1988); Fed. R. App. P. 4(a) (4). Thus, a party who files a notice of appeal while a Rule 59(e) motion is pending must file another notice of appeal after the disposition of the motion. United States For Use of Pippin v. J.R. Youngdale Constr. Co., 923 F.2d 146, 148 (9th Cir. 1991). If the party fails to do so, this court lacks jurisdiction over the appeal. See id.

Garcia filed a "Motion for Reconsideration from Order Granting Defendants' Summary Judgment" within ten days of the entry of the judgment. Garcia also filed a notice of appeal concurrently with this motion.

Garcia's motion for reconsideration sought to vacate the district court's grant of summary judgment. In the motion, Garcia argued that the court clerk had mistakenly failed to provide the court with his earlier motion for an enlargement of time in which to file his opposition to the motion for summary judgment. The district court denied Garcia's motion for reconsideration on December 10, 1990.

Although Garcia characterized his motion for reconsideration as a Rule 60(b) (1) motion, the nomenclature is not controlling. See Hasbrouck v. Texaco, Inc., 879 F.2d 632, 635 (9th Cir. 1989); Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (9th Cir. 1983). All that is required is that, as here, the requested relief may have been granted pursuant to Rule 59(e). See Whittaker v. Whittaker Corp., 639 F.2d 516, 520 (9th Cir. 1981), cert. denied, 454 U.S. 1031 (1981). A motion like Garcia's, which seeks a substantive change of mind by the court and is filed within ten days of the entry of judgment, constitutes a Rule 59(e) motion. See Tripati, 845 F.2d at 206 n. 1. Thus, Garcia's motion is properly construed as a Rule 59(e) motion and his concurrent notice of appeal is a nullity. Whittaker, 639 F.2d at 520; Tripati, 845 F.2d at 206 n. 1.

Garcia did not file a notice of appeal from the district court's denial of his motion for reconsideration. In this situation, we generally would have to dismiss the appeal for lack of jurisdiction. See Pippin, 923 F.2d at 148. Nevertheless, we find that Garcia obtained appellate jurisdiction by filing his opening brief on December 26, 1990, sixteen days after the district court denied his motion for reconsideration. See Allah v. Superior Court of California, 871 F.2d 887, 889 (9th Cir. 1989) (a document which clearly shows a party's intent to appeal will be treated as a notice of appeal, if the document is served on the other party and is timely filed in the court under Fed. R. App. P. 4(a) (1)).

II

Merits

Garcia contends that the district court erred by granting the defendants' motion for summary judgment pursuant to Local Rule 140-6 based on his failure to file an opposition the defendants' motion. Specifically, Garcia contends the district court erred by failing to consider and rule on Garcia's motion for an enlargement of time in which to file his opposition to the defendants' motion for summary judgment. Garcia's contention has merit.

Generally, the grant or denial of a motion for extension of time is reviewed for an abuse of discretion. See Eldridge v. Block, 832 F.2d 1132, 1136, 1138 (9th Cir. 1987). " ' [S]trict time limits [, however,] ... ought not be insisted upon' where restraints resulting from a pro se prisoner plaintiff's incarceration prevent timely compliance with court deadlines." Id. at 1136 (quoting Tarantino v. Eggers, 380 F.2d 465, 468 (9th Cir. 1967)).

Here, the defendants' motion for summary judgment was filed on August 27, 1990, and Garcia's memorandum in opposition to summary judgment was due September 11, 1990. Garcia submitted a motion for a forty-five day extension of time in which to file his opposition. The motion was dated September 8, 1990 and stamped filed on September 14, 1990. In his affidavit supporting the motion for an extension of time, Garcia asserted that the extension was necessary, in part, because of his lack of access to the law library or to trained legal personnel.¹  On October 10, 1990, the district court, without addressing Garcia's motion for an extension of time, granted the defendants' motion for summary judgment.

In reviewing the district court's docket sheet, it is clear that Garcia's motion for an extension of time was never entered on the docket. Thus, it appears that the district court was unaware of the pending motion for an extension of time when it granted the defendants' motion for summary judgment. Furthermore, it was Garcia's first request for an extension of time, and Garcia is a pro se prisoner plaintiff. Given these circumstances, we vacate the district court's grant of summary judgment and remand the case in order to allow the district court the opportunity to consider Garcia's motion for an extension of time in which to file his opposition to the defendants' motion for summary judgment. See Eldridge, 832 F.2d at 1136-38.

VACATED and REMANDED.