OPINION
Plaintiffs-Appellants Odelia Miller and Erma Lee Miller (sometimes jointly referred to as the “Millers”) appeal the district court’s dismissal of their complaint pursuant to their request and the district court’s grant of attorney fees and costs to Defendants. Because we have no jurisdiction over the merits, we dismiss the Millers’ appeal.
BACKGROUND
The Millers filed a complaint in state court alleging various state law causes of action and a separate cause of action under the Americans with Disabilities Act (the “ADA”) against Defendants as a result of their alleged refusal to permit the Millers to check into various hotel rooms when they were accompanied by a service dog. Following removal, the magistrate judge granted Defendants’ motion for sanctions based on various discovery abuses, and conditionally ordered Odelia Miller to appear for a deposition. The Millers appeared for the deposition and represented that they would dismiss their case to prevent Defendants from incurring additional attorneys’ fees.
Subsequently, the magistrate judge ordered Erma Miller to pay Defendants $25,000.00 in sanctions pursuant to his earlier order. The magistrate judge, however, provided that if the Millers followed through with their representation to dismiss the entire action with prejudice by October 19,1999, the order awarding sanctions would be deemed vacated, and “Plaintiff shall not be required to pay any of the foregoing monetary sanctions.” On October 18, 1999, the Millers requested dismissal of their complaint with prejudice. Their request was granted by the district court in an order entered on October 21, 1999. No judgment was ever entered. However, on November 9, 1999, the Millers filed a Notice of Appeal of the dismissal order.
A few days before the Millers filed their Notice of Appeal, Defendants sought attorneys’ fees and costs, on the basis that the Millers’ complaint was fabricated and without merit. The district court granted Defendants’ motion and on September 20, 2000, ordered the Millers to pay Defendants’ attorney fees and costs. On October 17, 2000, the Millers filed a Notice of
Between October 17, 2000, and November 20, 2000, the Millers filed three motions for reconsideration pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. The Millers sought relief from judgment based on “mistake, inadvertence, surprise, or excusable neglect,” “fraud ..., misrepresentation, or other misconduct of an adverse party,” “newly discovered evidence,” “the judgment[being] void,” and “any other reason justifying relief from ... judgment.” While the memoranda supporting these motions argued principally for reconsideration of the award of attorneys’ fees, the Millers also challenged the dismissal of their complaint because the magistrate judge did not have the authority to offer to forego sanctions in exchange for the Millers’ dismissal of their case.
In a Minute Order entered on January 19, 2001, the district court ruled that it did not have jurisdiction to dispose of the Rule 60(b) motions after the filing of a notice of appeal, absent remand from the Court of Appeals. The district court, pursuant to Crateo, Inc. v. Intermark, Inc.,
DISCUSSION
The present appeal must be dismissed for lack of jurisdiction. The filing of an effective notice of appeal is a jurisdictional requirement which cannot be waived. See Vernon v. Heckler,
(4) Effect of a Motion on a Notice of Appeal.
(A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;
(iii) for attorney’s fees under Rule 54 if the district court extends the time to appeal under Rule 58;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is filed no later than 10 days (computed using Federal Rule of Civil Procedure 6(a)) after the judgment is entered.
(B)(i) If a party files a notice of appeal after the court announces or enters a judgment — but before it disposes of any motion listed in Rule 4(a)(4)(A) — the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.
(Emphasis added). Under these provisions, a notice of appeal filed after the district court announces judgment is not effective until the district court has dis
In the present case, both notices of appeal were filed after the announcement of judgment, i.e., entry of the order dismissing the case. However, because no judgment was entered, the Millers’ Rule 60(b) motions were in fact filed no later than 10 days after judgment was entered. The district court declined to rule on the Rule 60(b) motions under the mistaken impression that it did not have jurisdiction once the Millers filed notices of appeal.
Defendants contend that the order dismissing the case was a final judgment because it was a separate document distinct from any opinion or memorandum. However, because the dismissal order provides the basis for the entry of judgment, the order itself cannot satisfy the separate document requirement. See McCalden v. Calif. Library Ass’n,
The district court ruled that since the Millers had “failed to present any justification for giving Plaintiffs[sic] relief from the Court’s September 19, 2000, Order, the Court hereby indicates that it is not willing to ‘entertain’ or grant Plaintiffs’ Rule 60(b) motion.” Defendants assert that this ruling effectively disposed of the Rule 60(b) motions. But the district court clearly indicated that it never entertained the Rule 60(b) motions. See Defenders of Wildlife v. Bernal,
Defendants’ remaining policy arguments are unpersuasive. Defendants posit that Fed.R.Civ.P. 58 should not be interpreted to curtail appeal rights, and a finding of no judgment in the present case would do so by destroying jurisdiction. Jurisdiction, however, is not destroyed but merely deferred. While Defendants’ concern that
Accordingly, we VACATE the district court’s order indicating that it was without jurisdiction to consider the Millers’ Rule 60(b) motions and REMAND for consideration of those motions.
VACATED AND REMANDED IN PART; DISMISSED IN PART. Each party shall bear its own costs on appeal.
Notes
. The district court’s order was based on our decision in Smith v. Lujan,
. We need not decide whether a Rule 60(b) motion requesting only reconsideration of an order awarding attorney fees tolls the effectiveness of a notice of appeal because the Millers’ Rule 60(b) motions not only challenged the attorney fee award but also sought to vacate the district court's announced judgment of dismissal. See Jones v. UNUM Life Ins. Co. of Am.,
. Vacating the district court’s order does not inappropriately reverse this Court’s prior motion panel decision to dismiss, based on lack of jurisdiction, the Millers' appeal of the district court's Rule 60(b) order. See United States v. Houser,
. Also before the Court are Appellants' Request for Judicial Notice received on September 10, 2001; Appellees' Joint Motion to Strike Portions of Appellants’ Excerpts of Record received on August 3, 2001; Appel-lees' Request for Judicial Notice received on August 3, 2001; and Appellees' Motion to Strike Portion of Appellants’ Reply Brief filed on October 5, 2001. Because we lack jurisdiction over the merits of the Millers' appeal, we deny these motions without prejudice. The parties may refile these motions, if neces: sary, once the Millers’ Notices of Appeal become effective.