Notice: Ninth Circuit Rule 36-3 Provides That Dispositions Other Than Opinions or Orders Designated for Publication Are Not Precedential and Should Not Be Cited Except when Relevant Under the Doctrines of Law of the Case, Res Judicata, or Collateral Estoppel, 29 F.3d 636 (9th Cir. 1993)

MEMORANDUM^** 

Ernie R. Sanders, a federal prisoner, appeals pro se the district court's order denying his Fed. R. Civ. P. 60(b) motion for reconsideration. We dismiss this appeal for lack of jurisdiction.

On December 10, 1992, the district court entered final judgment in this action. Sanders subsequently filed a Rule 60(b) motion for reconsideration, which the district court denied on February 5, 1993. On February 9, 1993, Sanders filed a notice of appeal challenging both decisions. On May 18, 1993, Sanders filed a second Rule 60(b) motion. The district court denied that motion on May 28, 1993. Sanders filed a notice of appeal from that order on June 14, 1993.

When Sanders filed his first notice of appeal on February 9, 1993, the district court was divested of jurisdiction to consider Sanders's second Rule 60(b) motion. Gould v. Mutual Life Ins. Co., 790 F.2d 769, 772 (9th Cir.), cert. denied, 479 U.S. 987 (1986). Sanders should have requested the district court to indicate whether it would entertain the motion and then moved this court for a remand of the case. See Smith v. Lujan, 588 F.2d 1304, 1307 (9th Cir. 1979). Because Sanders failed to follow the proper procedure, we dismiss this appeal for lack of jurisdiction. See id.

DISMISSED.