John Carl Kaza, Plaintiff-appellant, v. County of Santa Cruz, et al., Defendants-appellees, 17 F.3d 395 (9th Cir. 1994)
Annotate this CaseBefore: SNEED, NOONAN, and TROTT, Circuit Judges.
MEMORANDUM**
John Carl Kaza appeals pro se the district court's summary judgment in favor of the defendants in his 42 U.S.C. § 1983 action. We dismiss this appeal for lack of jurisdiction.1
The district court entered judgment on July 30, 1992, dismissing the action with prejudice. On August 10, 1992, Kaza served a notice of motion to alter the judgment or in the alternative, a notice of appeal.2 The district court did not address this motion. On August 31, 1992, Kaza filed a notice of appeal.
We construe Jones's motion to alter the judgment as a motion pursuant to Fed. R. Civ. P. 59(e). See United States v. Nutri-Cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992) (post-judgment motion that could have been brought under Rule 59(e) is properly construed as a Rule 59(e) motion, if brought within ten days of judgment); Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 585-86 (9th Cir. 1993) (timeliness of Rule 59(e) motion measured from date of service), petition for cert. filed, 62 U.S.L.W. 3336 (U.S. Oct. 26, 1993) (No. 93-659). Because Kaza filed his notice of appeal while a Rule 59(e) motion was pending in the district court, the notice of appeal was ineffective. See Fed. R. App. P. 4(a) (4); Allah v. Superior Court, 871 F.2d 887, 889 (9th Cir. 1988); Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 386 (9th Cir. 1988). Accordingly, we have no jurisdiction to consider this appeal. See Allah, 871 F.2d at 890 n. 1 (9th Cir. 1989) (timely notice of appeal is jurisdictional).3
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
Neither party raised this jurisdictional issue. However, we consider our jurisdiction sua sponte. See Abernathy v. Southern Cal. Edison, 885 F.2d 525, 527 (9th Cir. 1989)
The document states, in part: "This motion will be supported by supporting declarations, memos and oral argument. Plaintiff requests an oral hearing on the merits at that time, or in the alternative this is Notice of Appeal to the Appellate Court from above judgment."
Once the district court has decided Kaza's motion to alter the judgment, Kaza will have thirty days to file a timely notice of appeal. See Fed. R. App. P. 4(a) (4)
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