Ervin Middleton v. Guaranteed Rate, Inc.

684 F. App'x 674

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2017
• Docket: 16-15151
• Status: Unpublished

Opinion

MEMORANDUM **

. Ervin and Ann Middleton appeal pro se from the district court’s order denying their second motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

In their opening brief, the Middletons fail to challenge the district court’s order denying their second motion for reconsideration, and they have therefore waived any such challenge. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[0]n appeal, arguments not raised by a party in its opening brief are deemed waived.”); see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (‘We will not manufacture arguments for an appellant.... ”).

The filing of the second motion for reconsideration did not toll the time to appeal the underlying judgment. See Swimmer v. IRS, 811 F.2d 1343, 1344-45 (9th Cir. 1987), abrogated on other grounds by Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir. 1997). Thus, we do not consider the Middletons’ contentions regarding the merits of the district court’s order dismissing their action, or the district court’s order denying their first motion for reconsideration, because the Mid-dletons failed to file a timely notice of appeal as to those orders. See Fed. R. App. P. 4(a)(1)(A) (notice of appeal must be filed within 30 days of judgment); Stephanie-Cardona LLC v. Smith’s Food & Drug Ctrs., Inc., 476 F.3d 701, 703 (9th Cir. 2007) (“A timely notice of appeal is a non-waivable jurisdictional requirement.”); Swimmer, 811 F2.d at 1344-45.

The Middletons’ request for judicial notice, set forth in their reply brief, is denied.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.