Unpublished Disposition, 935 F.2d 275 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 275 (9th Cir. 1990)

Vito SGARAGLINO, Plaintiff-Appellant,v.STATE FARM FIRE AND CASUALTY CO., Defendant-Appellee.

No. 90-16610.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1991.* Decided June 4, 1991.

Before HUG, KOZINSKI and LEAVY, Circuit Judges.


MEMORANDUM** 

Vito Sgaraglino appeals from the district court's order denying his second motion for reconsideration. We review the district court's order for an abuse of discretion. See Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 832 (9th Cir. 1986) (denial of motion pursuant to Fed. R. Civ. P. 60(b)). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

On December 18, 1986, the district court entered a judgment against Sgaraglino. Sgaraglino appealed to this court, and we affirmed. We denied a petition for rehearing, and the Supreme Court denied certiorari. On February 20, 1990, Sgaraglino filed his first Rule 60(b) motion for reconsideration of the 1986 judgment. On July 23, 1990, the district court denied the motion. On August 2, 1990, the district court apparently received a letter from Sgaraglino objecting to the denial of the Rule 60(b) motion. The district court construed the letter as a Rule 60(b) motion for reconsideration of the court's July 23, 1990 order denying the first Rule 60(b) motion. The district court denied this second motion for reconsideration, and Sgaraglino subsequently filed a notice of appeal with this court.

Sgaraglino's first motion for reconsideration was cognizable as a Rule 60(b) (3) motion because it was grounded on allegations of fraud by the opposing party at the December 1986 trial. See Fed. R. Civ. P. 60(b) (3). Rule 60(b) requires that the party seeking relief make a motion within a reasonable amount of time, but specifies that a Rule 60(b) (3) motion be made within one year from the judgment to which the motion refers. See Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984). The one year restriction is jurisdictional. Id.

Sgaraglino's Rule 60(b) (3) motion was not filed within the one-year limitations period. In fact, Sgaraglino filed his Rule 60(b) (3) motion four years after the December 12, 1986 judgment to which it referred. The motion was therefore untimely, and the district court lacked jurisdiction to consider it. Id. Thus, the district court properly denied Sgaraglino's first motion for reconsideration. Id.1  Accordingly, the district court did not abuse its discretion in denying Sgaraglino's second motion for reconsideration. See Thompson, 782 F.2d at 832.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision 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

 1

The district court denied Sgaraglino's Rule 60(b) (3) motion for reconsideration on the grounds that Sgaraglino's contentions were meritless. We however, may affirm on any basis supported by the record. See United States v. Humboldt, 628 F.2d 549, 551 (9th Cir. 1980)