Unpublished Disposition, 935 F.2d 276 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 276 (9th Cir. 1990)

Phillip J. TAYLOR, Plaintiff-Appellant,v.UNITED TRANSPORTATION UNION, Burlington Northern RailroadCompany, Jim Hurley, John Fitzgerald, Defendants-Appellees.

No. 90-35198.

United States Court of Appeals, Ninth Circuit.

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

Before HUG, KOZINSKI and LEAVY, Circuit Judges.


MEMORANDUM** 

Phillip J. Taylor appeals pro se the district court's summary judgment in favor of appellees in his wrongful discharge action. We dismiss this appeal for lack of jurisdiction.

"The requirement of a timely notice of appeal is mandatory and jurisdictional." Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 386 (9th Cir. 1988) (citation omitted). A timely motion pursuant to Fed. R. Civ. P. 59(e) renders a notice of appeal filed before disposition of the motion a nullity, and a new notice of appeal must be filed within the prescribed time measured from the order disposing of the motion. See Tripati v. Henman, 845 F.2d 205, 206 (9th Cir. 1988). Fed. R. App. P. 4(a) (4). A party who files a notice of appeal while a Rule 59(e) motion is pending must file another notice of appeal after the disposition of the motion. United States For Use of Pippin v. J.R. Youngdale Constr. Co., Inc., 923 F.2d 146, 148 (9th Cir. 1991). If the party fails to do so, this court lacks jurisdiction over the appeal. See id.

Taylor filed a "Motion for Reconsideration of Summary Judgment" within ten days of the entry of the judgment which the district court construed as a Rule 59(e) motion. On February 8, 1990, while the motion was pending, Taylor filed a notice of appeal with this court. The district court then dismissed Taylor's motion on the grounds that the court lacked jurisdiction to consider it because of Taylor's pending appeal.

Taylor's motion challenged the propriety of the district court's grant of summary judgment against him. In his motion, Taylor argued that the district court erred in finding that the statute of limitations had run on his claim.

Although Taylor did not recite that his motion was a Rule 59(e) motion, the nomenclature is not controlling. See Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (9th Cir. 1983). All that is required is that, as here, the requested relief may have been granted pursuant to Rule 59(e). See Whittaker v. Whittaker Corp., 639 F.2d 516, 520 (9th Cir. 1981), cert. denied, 454 U.S. 1031 (1981). A motion such as Taylor's, which seeks a substantive change of mind by the court constitutes a Rule 59(e) motion. See Tripati, 845 F.2d at 206 n. 1. Thus, Taylor's motion was properly construed by the district court as a Rule 59(e) motion. Whittaker, 639 F.2d at 520; Tripati, 845 F.2d at 206 n. 1.1 

Because Taylor filed a notice of appeal to this court while his Rule 59(e) motion was pending, the notice of appeal is a nullity. See Tripati, 845 F.2d at 206. Moreover, because Taylor failed to file a new notice of appeal after the district court's disposition of his motion on May 3, 1989, we lack jurisdiction over this appeal. See United States For Use of Pippin, 923 F.2d at 149. Accordingly, we dismiss this appeal for lack of jurisdiction.

DISMISSED.

 *

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

Although we lack jurisdiction to review the district court's disposition of Taylor's Motion for Reconsideration, we note that the district court erred in denying Taylor's Rule 59(e) motion solely on the grounds that it lacked jurisdiction to consider it because a notice of appeal had been filed with this court. See Tripati, 845 F.2d at 206. Thus, Taylor may seek such remedies in the district court as are appropriate for proper consideration of his Rule 59(e) motion