This decision dismisses plaintiff’s appeal as untimely. Plaintiff filed a timely motion supposedly under FRCivP 59(e), which if it had really sought to alter or amend judgment, would have extended the appeal time under FRApp 4(a)(4)(A). However, despite the motion’s title, what it really sought was a stay of judgment pending the Ninth Circuit’s decision in a case that allegedly raised the same or a similar issue. It is the substance of the motion, not its title, that controls its effect on the appeal time. Here, the motion was not truly one to alter or amend judgment so it didn’t extend the time to appeal, and so plaintiff’s appeal was untimely. The opinion discusses various alternative means by which plaintiffs might have preserved their appeal while still awaiting the decision in the case they thought might prove to be controlling authority.
Ninth Circuit Court of Appeals (Gould, J.); July 25, 2017; 2017 WL 3138103