720 F. 2d 1019 - Bestran Corporation v. Eagle Comtronics Inc

Joseph M. Malkin, Mark A. Samuels, O'Melveny & Myers, Los Angeles, Cal., for defendant-counterclaimant-appellee.

Sherrill L. Johnson, Gibson, Dunn & Crutcher, Los Angeles, Cal., for plaintiff-counterdefendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before HUG and FLETCHER, Circuit Judges, and CARROLL, District Judge.*

Bestran appeals from the district court's denial of its motion for injunction restraining Eagle from prosecuting an identical action in New York. After the denial of the motion for injunction, Bestran filed a timely motion for reconsideration "pursuant to Local Rule 3.16 and Federal Rule of Civil Procedure, Rule 59(e)." Thirty days after the denial of the injunction, but before the district court had ruled on the motion for reconsideration, Bestran filed its notice of appeal.

A timely filed motion for reconsideration under a local rule is a motion to alter or amend a judgment under Fed.R.Civ.P. 59(e). See Gainey v. Brotherhood of Railway & Steamship Clerks, 303 F.2d 716, 718 (3d Cir.1962). A notice of appeal is null if filed while a timely motion under Fed.R.Civ.P. 59(e) is pending before the district court. Griggs v. Provident Consumer Discount Co., --- U.S. ----, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1983); Fed.R.App.P. 4(a)(4).

The appeal is hereby DISMISSED for lack of appellate jurisdiction.