Unpublished Disposition, 902 F.2d 38 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 38 (9th Cir. 1990)

ven M. DE LONG, Plaintiff-Appellant,v.AMERICAN PROTECTIVE SERVICES, Defendant-Appellee.

No. 89-15146.

United States Court of Appeals, Ninth Circuit.

Submitted April 16, 1990.^* Decided May 1, 1990.

Before HUG, SKOPIL and SCHROEDER, Circuit Judges.

MEMORANDUM^**

Appellant's motion to vacate is properly treated as a motion under Fed. R. Civ. P. 59(e) and thus tolled the time for filing a notice of appeal until it was ruled upon. The notice of appeal was filed within 30 days of the order and was thus timely. See 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice p 204.12(1), at 4-67 (2d ed. 1989); Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1419 (9th Cir. 1984).

The dismissal for lack of subject matter jurisdiction was proper. The complaint stated only a claim under California law, not under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-(2).

The Motion to Set Aside and Vacate was properly denied. The basis for the motion, even if true, could not cure the lack of subject matter jurisdiction.

AFFIRMED.

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 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

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