Horst Schmidt, Plaintiff-appellant, v. Bank of America-nevada, an Interstate Banking Corporationdoing Business in Nevada; Does I-x; and Roecorporations I-x, Defendant-appellee, 103 F.3d 140 (9th Cir. 1996)

MEMORANDUM^** 

Horst Schmidt appeals pro se the dismissal of his action under the Sherman Act, 15 U.S.C. § 1; Bank Holding Company Act, 12 U.S.C. § 1972(1) (e); and RICO, 18 U.S.C. § 1962, against the Bank of America-Nevada ("Bank"), which refused to lend Schmidt money after the Bank learned that Schmidt planned to file for bankruptcy.¹ 

We have an obligation to sua sponte consider whether we have jurisdiction over the appeal, although neither party raises a jurisdictional issue. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986); Reynaga v. Cammisa, 971 F.2d 414, 417 (9th Cir. 1992).

Schmidt's August 3, 1995 Rule 59(e) motion did not toll the time for appeal because it was untimely. See Fed. R. Civ. P. 59(b), 6(a).²  Hence, Schmidt's September 29, 1995 notice of appeal is untimely as to the district court's July 18, 1995 order dismissing his action pursuant to Fed. R. Civ. P. 12(b) (6). See Fed. R. App. P. 4(a) (1). Accordingly, this court only has jurisdiction over the appeal from the district court's September 6, 1995 order denying Schmidt's Rule 59(e) motion. See 28 U.S.C. § 1291.³ 

Because the Rule 59(e) motion was untimely, we may hear this appeal only by construing Schmidt's motion as based on Fed. R. Civ. P. 60(b). See Mt. Graham Red Squirrel, 954 F.2d at 1463 n. 35; Straw v. Bowen, 866 F.2d 1167, 1171-72 (9th Cir. 1989).

We review for abuse of discretion a district court's ruling on a Rule 60(b) motion. See Export Group v. Reef Indus., 54 F.3d 1466, 1469 (9th Cir. 1995). "A district court abuses its discretion if it does not apply the correct law ..." Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1043 (9th Cir. 1992) (citation omitted).

Given the allegations in Schmidt's motion we can construe his August 3, 1995 motion as seeking relief under Fed. R. Civ. P. 60(b) (1). See Straw, 866 F.2d at 1171-72. Pursuant to Rule 60(b) (1) a district court has the authority to vacate a judgment based on "mistake, inadvertence, surprise, or excusable neglect." A movant under Rule 60(b) (1) "must show that the district court committed a specific error." Straw, 866 F.2d at 1172 (citation omitted). " [E]rrors of law may be corrected under Rule 60(b) motions." Liberty Mutual Ins. Co. v. Equal Employment Opportunity Comm'n, 691 F.2d 438, 441 n. 5 (9th Cir. 1982).

In his motion Schmidt contended that the district court should have allowed him to amend his complaint before dismissing his action. Schmidt specifically alleged that his lack of legal expertise as a pro se plaintiff prevented him from correctly pleading the facts in his case in conformance with the applicable law.

"A pro se litigant must be given leave to amend his or her complaint unless it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' " Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1986) (citation omitted).

Because the deficiencies of Schmidt's claims under the Sherman Act, the Bank Holding Act and RICO cannot be cured by amendment, the district court did not abuse its discretion by denying reconsideration of the July 18, 1995 order dismissing those claims. See Noll, 809 F.2d at 1448. Accordingly, we affirm the district court's September 6, 1995 order denying reconsideration of its July 18, 1995 order dismissing the action.

AFFIRMED.⁴