Unpublished Disposition, 902 F.2d 38 (9th Cir. 1990)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