Unpublished Disposition, 852 F.2d 571 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 571 (9th Cir. 1988)

Robert John LAUDERDALE, Craig Stuart Lauderdale, Plaintiffs-Appellants,v.METAL BOX p.l.c.; Stelrad Group Ltd.; Richard Jordan, etal. and Does 1 through 6, inclusive, Defendants-Appellees.

No. 87-2518.

United States Court of Appeals, Ninth Circuit.

Submitted May 13, 1988.* Decided June 23, 1988.

Before SCHROEDER, NOONAN and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

Appellant Robert John Lauderdale asked appellee Stelrad Group Limited ("Stelrad"), a boiler manufacturer, to appoint him as their direct distributor in California. Some negotiations ensued. When negotiations broke down, Lauderdale sued Stelrad; its parent company, Metal Box p.l.c. ("Metal Box"); and Richard Jordan, Stelrad's export manager, alleging breach of an oral contract.

On March 13, 1987 the district court dismissed defendants Metal Box and Richard Jordan for lack of personal jurisdiction.

On May 22, the district court granted summary judgment from the bench for Stelrad.

On May 26, Lauderdale filed a motion for reconsideration of that decision, apparently under Fed. R. Civ. P. 59(e).

On July 23, the district court entered a written order granting the summary judgment motion and, on July 27, a final judgment dismissing the action.

On July 31, the court heard Lauderdale's motion for reconsideration.

On August 13, Lauderdale filed a notice of appeal.

On September 11, the district court denied the motion for reconsideration.

On January 5, 1988 Lauderdale filed an amended notice of appeal.

On January 14, a motions panel of this court denied appellees' motion to dismiss this appeal for lack of jurisdiction.

DISCUSSION

We find that we lack jurisdiction because Lauderdale's notice of appeal was not timely filed.

A finding of jurisdiction by a motions panel of this court does not foreclose a merits panel from reconsidering the jurisdictional issue. Arizona Elec. Power Coop., Inc. v. United States, 816 F.2d 1366, 1371 (9th Cir. 1987). We therefore reexamine our jurisdiction.

Lauderdale's first notice of appeal was premature and ineffective because it was filed before the district court ruled on his motion for reconsideration.

Fed. R. App. P. 4(a) (4) provides that:

If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party: ... (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, ... A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.

(Emphasis added).

The Supreme Court approved a narrow reading of this rule and dismissed as untimely an appeal in a case nearly identical to the one before us. Citing the conflict that would result if both courts had the power to modify the same judgment, it held that the notice of appeal "was a nullity ... as if no notice of appeal were filed at all. And if no notice of appeal is filed at all, the Court of Appeals lacks jurisdiction to act." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982). See also Tripati v. Henman, No. 87-2039, slip op. at 4845 (9th Cir. Apr. 25, 1988).

This requirement of strict adherence to Fed. R. App. P. 4(a) (4) was reinforced by this court's ruling in Lewis v. United States Postal Serv., 84) F.2d 712 (9th Cir. 1988), handed down after the motions panel's decision in this case. Lewis also clarified a point of law on which the motions panel had given Lauderdale the benefit of then-existing doubt: that motions filed before the entry of judgment could be construed as Rule 59(e) motions. Here, Lauderdale filed his first notice of appeal while his motion to alter or amend the judgment was still pending before the district court. Under Griggs and Lewis, that notice was of no effect.

Lauderdale's second notice of appeal, filed on January 5, 1988, was also untimely because it was filed more than thirty days after the denial of the motion for reconsideration. Fed. R. App. P. 4(a) (1), (4) (iii). Because this court therefore lacks jurisdiction over this appeal, it is

DISMISSED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

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