Opinion
No. C 06-2366 SBA.
June 27, 2007
ORDER [Docket No. 49]
Before the Court is plaintiff W.D. Flient's motion for reconsideration [Docket No. 49], filed on June 8, 2007, along with a notice of appeal. On May 8, 2007, the Court granted the defendants' motion to dismiss and dismissed Flient's complaint with prejudice. Whether analyzed under Federal Rule of Civil Procedure 59(e) or 60(b), the motion for reconsideration must be denied.
1. Timeliness under Rule 59(e)
Federal Rule of Civil Procedure 59(e) allows a party to file a motion to alter or amend judgment within ten days after entry of judgment. A dismissal with prejudice is a final judgment on the merits unless otherwise specified. See Stewart v. U.S. Bancorp., 297 F.3d 953, 956 (9th Cir. 2002); United States v. Schimmels, 127 F.3d 875, 884 (9th Cir. 1997). The entry of judgment was therefore on May 8, 2007. The motion for reconsideration was filed on June 8, 2007. See Docket No. 49. Because Flient filed the motion more than ten days after the entry of judgment, the motion is untimely under Rule 59(e).
2. Jurisdiction under Rule 60(b)
Under Rule 60(b)(6), a court may relieve a party from a final judgment for "any other reason justifying relief from the operation of the judgment" based on a motion made within a reasonable time. Once a notice of appeal is filed, however, a district court does not have jurisdiction to consider motions to vacate judgment. See Davis v. Yageo Corp., 481 F.3d 661, 685 (9th Cir. 2007); Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004), cert. denied, 126 S. Ct. 419 (2005). Because the Court is without jurisdiction to entertain the motion for reconsideration, it is DENIED.
IT IS SO ORDERED.