Unpublished Disposition, 899 F.2d 1224 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1224 (9th Cir. 1989)

Tayfun AMUR, Plaintiff-Appellant,v.ACL-FILCO CORPORATION, ACL Technologies Inc. Defendants-Appellees

No. 89-55223.

United States Court of Appeals, Ninth Circuit.

Submitted March 26, 1990.* Decided April 3, 1990.

Before FLETCHER, LEAVY and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Tayfun Amur appeals the district court's order denying his Fed. R. Civ. P. 60(b) motion for relief from the voluntary dismissal of his action and the order awarding attorneys' fees against him. Amur contends that the district court erred in failing to determine whether relief under Rule 60(b) was warranted due to mistake, inadvertence, newly discovered evidence, surprise, and fraud. Amur further contends that the district court erred by determining whether federal question jurisdiction was present without first vacating the voluntary dismissal. We have jurisdiction pursuant to 28 U.S.C. § 1291. We dismiss in part and affirm in part.

We review the district court's denial of Amur's motion under Rule 60(b) for an abuse of discretion, and will reverse only upon a clear showing of abuse of discretion. Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989). The question of subject-matter jurisdiction is reviewed de novo. Mobil Oil Corp. v. City Of Long Beach, 772 F.2d 534, 538 (9th Cir. 1985).

We determine whether federal question jurisdiction exists by applying the "well-pleaded complaint" rule. Id. Under this rule, " [a] complaint is not well-pleaded if it includes a federal question that can be raised properly only as an anticipated defense." Id. at 538-39. In an action for declaratory relief, however, the question is whether the federal question at issue would arise in a coercive action brought by the declaratory relief defendant. Id. at 539.

We fail to discern how the Arms Export Control Act can form a jurisdictional basis for any possible coercive action brought by ACL-FILCO on the contract at issue here. The central issue in this case is simply whether, under state law, ACL-FILCO has breached a private contract with Amur. See Mobil Oil Corp., 772 F.2d at 540. In this context, the applicability of the Act can only arise as a defense to Amur's action. See id. The district court correctly found that federal question jurisdiction does not exist, see id. at 538-39, and thus, did not abuse its discretion in denying Amur's Rule 60(b) motion, see Molloy, 878 F.2d at 315.

In his notice of appeal, Amur states that he also appeals the voluntary dismissal itself. The time for filing an appeal from a judgment under Fed. R. App. P. 4(a) is not tolled, however, by a motion for relief under Rule 60(b). See Securities and Exchange Comm'n v. Seaboard Corp., 666 F.2d 414, 415 (9th Cir. 1982).

The voluntary dismissal was entered on September 12, 1988. Amur filed his notice of appeal on March 1, 1989, well after the thirty-day deadline for filing had passed. See Fed. R. App. P. 4(a) (1). Amur's appeal from the voluntary dismissal is therefore untimely and we dismiss this part of his appeal for lack of jurisdiction. See Fiester v. Turner, 783 F.2d 1474, 1475 (9th Cir. 1986). Moreover, we do not reach the merits of the voluntary dismissal on Amur's appeal from the denial of his Rule 60(b) motion. See Mobil Oil Corp., 772 F.2d at 538.

DISMISSED IN PART and AFFIRMED IN PART.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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 9th Cir.R. 36-3