Unpublished Disposition, 902 F.2d 38 (9th Cir. 1990)Annotate this Case
ven M. DE LONG, Plaintiff-Appellant,v.AMERICAN PROTECTIVE SERVICES, Defendant-Appellee.
United States Court of Appeals, Ninth Circuit.
Submitted April 16, 1990.* Decided May 1, 1990.
Before HUG, SKOPIL and SCHROEDER, Circuit Judges.
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.