United States of America, Plaintiff-appellee, v. George R. Huebner; Theresa C. Huebner, Defendants-appellants, 50 F.3d 17 (9th Cir. 1995)

MEMORANDUM^** 

The Huebners appealed from the original judgment too late, so we have no jurisdiction over that appeal. Our jurisdiction is limited to their appeal of the denial of their Rule 59 motion for new trial or to alter or amend judgment. See our order filed October 25, 1993 in this case.

The Huebners submitted their motion under Fed. R. Civ. P. 59 too late. It was due no later than June 30, under Fed. R. Civ. P. 59(e) and 6(a), but they filed it July 2. The district court had no discretion to consider the Rule 59 motion, because it was late, so it properly denied it. Carter v. United States, 973 F.2d 1479, 1488 (9th Cir. 1992).

The Huebners argue that we should construe their Rule 59 motion as one brought pursuant to Fed. R. Civ. P. 60. We have discretion to do so, but decline so to exercise our discretion. Straw v. Bowen, 866 F.2d 1167, 1181 (9th Cir. 1989). The district court did not abuse its discretion in treating the motion as what the Huebners called it, a Rule 59 motion, and denying it. See Fiester v. Turner, 783 F.2d 1474, 1476 (9th Cir. 1986). No ground cognizable under Rule 60(b) is demonstrated by their brief. The claimed jurisdictional grounds do not go to the jurisdiction of the district court. They allege error in the interpretation and application of Arizona law, an ordinary appeal point, waived because no timely appeal was filed. Their other arguments as to jurisdiction are without merit. See United States v. Plesinski, 912 F.2d 1033, 1038-39 (9th Cir. 1990) (district attorney's unauthorized participation did not strip district court of jurisdiction).

AFFIRMED.