Sanowski v. Ford Motor Credit Co.

59 F. App'x 988

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 21, 2003
• Docket: No. 02-35191; D.C. No. CV-98-00358-RHW
• Status: Published

Opinion

MEMORANDUM

**

Mary K. Sanowski appeals pro se the district court’s orders denying her (1) motion for reconsideration of its previous order dismissing her action alleging breach of contract and consumer fraud, and (2) motion for an extension of time in which to file a notice of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291 over the district court’s order denying an extension of time to file a notice of appeal. We review for an abuse of discretion, Nunley v. City of Los Angeles, 52 F.3d 792, 794 (9th Cir.1995), and we dismiss the appeal in part and affirm in part.

The district court did not abuse its discretion by denying Sanowski’s motion for an extension of time to file a notice of appeal. The fact that Sanowski was traveling for several weeks and therefore did not receive her mail was not sufficient to establish good cause for an extension. See Fed. R.App. P. 4(a)(5)(A). In addition, we reject Sanowski’s contention that her notice of appeal was timely pursuant to Fed. R.App. P. 4(a)(1)(B) because the trustee in Sanowski’s bankruptcy case is not a party to this action.¹

We also reject Sanowski’s contention that she timely appealed from the district court’s denial of her motion for reconsideration. Sanowski filed a “motion for extension of time to file appeal” within 80 days of the entry of the district court’s order denying reconsideration. But this motion was not the “functional equivalent” of a notice of appeal because it did not comply with Fed. R.App. P. 8(c)(1), which requires in part that a notice of appeal “name the court to which the appeal is taken.” See Andrade v. Roe, 270 F.3d 743, 752 (9th Cir.2001) (timely motion for extension may serve as functional equivalent of a timely notice of appeal if it gives notice of the three elements required by Fed. R.App. P. 3(c)(1)), rev’d on other grounds, — U.S. —, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Accordingly, we lack jurisdiction to consider the district court’s denial of Sanowski’s motion for reconsideration.

Sanowski’s remaining contentions lack merit.

Appellee Wendle Properties, Inc., has requested an award of attorney’s fees and costs for defending a frivolous appeal. This request is denied without prejudice to the filing of a separate motion pursuant to Fed. R.App. P. 38 and 9th Cir. R. 39-1.

DISMISSED IN PART and AFFIRMED IN PART.

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.

1 . Sanowski’s motion to file a supplemental brief to address this issue is denied.