Vygovskiy v. TUV Rheinland of North America, Inc.

86 F. App'x 304

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 16, 2004
• Docket: No. 03-55874; D.C. No. CV-00-00901-BTM/JAH
• Status: Published

Opinion

MEMORANDUM

**

Yuriy Vygovskiy appeals pro se the district court’s order denying his motion pursuant to Fed.R.Civ.P. 60(b) for relief from judgment in his action alleging that TUV Rheinland of North America, Inc., terminated his employment in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act.

In determining that it lacked jurisdiction to consider the motion because it was filed outside the one-year time period for motions for relief brought under Rule 60(b)(b)(l), (2) or (3), the district court properly rejected Vygovskiy’s contention that the one-year limit was tolled during the pendency of his prior appeal to this court. Nevitt v. United States, 886 F.2d 1187, 1188 (9th Cir.1989) (holding that pendency of an appeal does not toll the one-year period).

Vygovskiy’s contention, made for the first time in his reply brief, that his motion was brought pursuant to “all subdivisions” of Rule 60(b), and is therefore subject to the “reasonable time” limit rather than the one-year time limit, is contradicted by the motion itself, which states that it is brought pursuant to subsections (1) and (3) and sets forth grounds for relief covered by subsections (1), (2) and (3).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.