ERVIN MIDDLETON, Jr.; ANN GATES MIDDLETON v. GUARANTEED RATE, INC.; WELLS FARGO BANK, NA, DBA Wells Fargo Home Mortgage, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERVIN MIDDLETON, Jr.; ANN GATES
MIDDLETON,
Plaintiffs-Appellants,
v.
GUARANTEED RATE, INC.; WELLS
FARGO BANK, NA, DBA Wells Fargo
Home Mortgage, Inc.,
Defendants-Appellees.
No. 16-15151
D.C. No. 2:15-cv-00943-RCJ-
GWF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
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.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAR 23 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-15151
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) (“[O]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 Middletons 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.

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