U.S. Court of Appeals for the Ninth Circuit, 1996

Desmond Patrick Brendan Corr v. Gannett Pacific Corporation

U.S. Court of Appeals for the Ninth Circuit · Decided May 6, 1996

85 F.3d 634; 1996 U.S. App. LEXIS 31707; 1996 WL 228574 (Federal Reporter, Third Series)

Opinion

85 F.3d 634

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Desmond Patrick Brendan CORR, Plaintiff-Appellant,
v.
GANNETT PACIFIC CORPORATION, Defendant-Appellee.

No. 95-16323.

United States Court of Appeals, Ninth Circuit.

Submitted April 30, 1996.*
Decided May 6, 1996.

Before: BROWNING, REINHARDT and FERNANDEZ, Circuit Judges.

MEMORANDUM**

Desmond Patrick Brendan Corr appeals pro se the district court's denial of his Fed.R.Civ.P. 60(b) motion to reconsider the court's dismissal of the civil rights action Corr and his wife Patricia filed against Gannett Pacific Corporation, owner of the Honolulu Advertiser.1 Corr contends Gannett improperly obtained judgment against him through mail fraud and misconduct. We conclude the district court properly determined (1) Corr was not entitled to relief from judgment due to fraud, see Luttrell v. United States, 644 F.2d 1274, 1276 (9th Cir. 1981); (2) amendment of the complaint would have been futile, Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); and (3) denial of a default judgment was not error. See Draper v. Coombs, 792 F.2d 915, 925 (9th Cir. 1986).

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

Corr's motion for reconsideration was not filed within 10 days as required by Fed.R.Civ.P. 59(e), thus the district court properly treated his motion as one brought under Fed.R.Civ.P. 60(b). See United States v. Nutri-Cology, Inc., 982 F.2d 394, 396-97 (9th Cir. 1992). Since a Rule 60(b) motion does not toll the time for filing a notice of appeal, and Corr's appeal was filed over 30 days after the district court's final judgment, we review only whether the district court abused its discretion by denying Corr's Rule 60(b) motion. See Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991); see also Vernon v. Heckler, 811 F.2d 1274, 1276 (9th Cir. 1987) (filing timely notice of appeal is jurisdictional)

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