Unpublished Disposition, 852 F.2d 572 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 572 (9th Cir. 1988)

R.J. SARIS, M.D., Plaintiff-Appellant,v.GREEN MOUNTAIN SCHOOL DISTRICT # 103, Samuel Arnold Brim, etal., Defendants- Appellees.

No. 86-4346.

United States Court of Appeals, Ninth Circuit.

Submitted June 15, 1988.Decided June 30, 1988.* 

Before MERRILL, REINHARDT, and CYNTHIA HOLCOMB HALL, Circuit Judges.


MEMORANDUM** 

Saris appeals from the district court judgment dismissing his case.

Six days after dismissal, Saris filed a motion entitled "Rule 60 Motion for Relief from Judgment or Order." This appeal was taken while the motion was still pending. The district court has not yet ruled on the motion.

The special issue on this appeal is whether this court has jurisdiction over Saris' appeal from the district court. This court's jurisdiction depends on whether Saris' motion is taken pursuant to Rule 59 or 60, Fed. R. Civ. P. A Rule 59 motion is proper if the party requests a new trial or wishes to alter or amend judgment. The motion must be filed within ten days. If a Rule 59 motion is pending in the district court, a notice of appeal filed while the motion is pending is invalid. Rule 4(a) (4), Fed. R. App. P. A Rule 60 motion is proper when relief from judgment is sought due to clerical mistakes, inadvertence, excusable neglect, newly discovered evidence, fraud, etc. It must be filed within one year of judgment and does not affect jurisdiction of an appellate court.

Although Saris entitled his motion as a Rule 60 motion, nomenclature is not controlling. Whittaker v. Whittaker Corp., 639 F.2d 516, 520 (9th Cir. 1981). In this case, Saris' motion is more properly construed as a Rule 59(e) motion because he sought a change in the court's decision dismissing this case. He did not seek relief from judgment under the special circumstances enumerated under Rule 60. Moreover, Saris brought his motion within ten days of dismissal which is timely under Rule 59(e).

It is ordered that this appeal is dismissed for lack of jurisdiction. Fed. R. App. P. 4(a) (4); Barry v. Bowen, 825 F.2d 1324, 1328 (9th Cir. 1987).

 *

The panel finds this case appropriate for submission without argument pursuant to Ninth Circuit Rule 34-4 and Fed. R. App. P. 34(a)

 **

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