B. Spain v. EMC MORTGAGE CORPORATION, Affecting Interstate Commerce;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
B. SPAIN,
Plaintiff - Appellant,
v.
EMC MORTGAGE CORPORATION,
Affecting Interstate Commerce; et al.,
Defendants - Appellees.
No. 10-17559
D.C. No. 2:07-cv-00308-RCB
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Robert C. Broomfield, District Judge, Presiding
Submitted November 13, 2012**
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
B. Spain appeals pro se from the district court’s order imposing a pre-filing
restriction on him as a vexatious litigant. We have jurisdiction under 28 U.S.C.
§ 1291. We review for an abuse of discretion. De Long v. Hennessey, 912 F.2d
FILED
NOV 20 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

10-17559 2
1144, 1146 (9th Cir. 1990). We affirm in part and dismiss in part.
The district court did not abuse its discretion by entering a pre-filing order
against Spain after giving him notice and an opportunity to be heard, developing an
adequate record for review, making findings regarding Spain’s frivolous and
harassing litigation history, and tailoring the restriction narrowly. See id. at 1147-
48 (explaining factors for entry of pre-filing order).
We lack jurisdiction to review the district court’s judgment dismissing
Spain’s action because Spain failed to file a timely notice of appeal from that
decision. See Fed. R. App. P. 4(a)(1), (4) (notice of appeal must be filed within
thirty days of order disposing of timely post-judgment tolling motion).
Accordingly, we dismiss that portion of the appeal.
Defendants’ request for attorney’s fees is denied without prejudice to a
separately filed motion on the issue. See Fed. R. App. P. 38.
AFFIRMED in part; DISMISSED in part.

-- 2 of 2 --