Danita Patterson v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., (MERS) As Nominee for Pacific Mutual…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANITA PATTERSON,
Plaintiff-Appellant,
v.
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
(MERS) As Nominee for Pacific Mutual
Funding Inc dba Pacific Residential
financing as beneficiary; et al.,
Defendants-Appellees.
No. 16-56819
D.C. No. 2:11-cv-02935-R-MAN
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted January 16, 2018**
Before: REINHARDT, TROTT, and HURWITZ, Circuit Judges.
Danita Patterson appeals pro se from the district court’s order denying her
post-judgment Federal Rule of Civil Procedure 60(b) motion in her diversity action
* 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
JAN 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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arising from a loan modification. We have jurisdiction under 28 U.S.C. § 1291.
We review for an abuse of discretion. Lemoge v. United States, 587 F.3d 1188,
1191-92 (9th Cir. 2009). We affirm.
The district court did not abuse its discretion in denying Patterson’s motion
for relief from judgment because Patterson failed to establish grounds for relief.
See Fed. R. Civ. P. 60(b)(1) (the court may relieve a party from a final judgment or
order for mistake); Lemoge, 587 F.3d at 1192 (setting forth factors for excusable
neglect under Rule 60(b)(1)); Casey v. Albertson’s Inc., 362 F.3d 1254, 1260 (9th
Cir. 2004) (to prevail under Rule 60(b)(3), “moving party must prove by clear and
convincing evidence” that judgment was obtained through fraud,
misrepresentation, or other misconduct that was not “discoverable by due diligence
before or during the proceedings”).
To the extent that Patterson challenges the underlying judgment, we lack
jurisdiction because the notice of appeal was untimely as to the judgment. See
Fed. R. App. P. 4(a)(1)(A) (notice of appeal must be filed within 30 days after
entry of judgment or order appealed from); 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.”); see also Fed. R. App. P.
(4)(A)(vi) (a motion under Fed. R. Civ. P. 60(b) extends the time to file an appeal
if the motion is filed no later than 28 days after judgment is entered).

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We do not consider documents and facts not presented to the district court.
See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts
not presented to the district court are not part of the record on appeal.”).
Appellees’ request for judicial notice, set forth in their answering brief, is
granted.
Patterson’s emergency “motion for stay pending appeal” (Docket Entry No.
41) is denied.
AFFIRMED.

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