Randy Stevens; Elissa Stevens v. Jiffy Lube International, Inc .

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
R ANDY S TEVENS; E LISSA S TEVENS ,
Petitioners-Appellants,
v.
J IFFY LUBE INTERNATIONAL, INC .,
Respondent-Appellee.
No. 17-15965
D.C. No.
3:16-cv-07175-
EMC
OPINION
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted October 10, 2018*
San Francisco, California
Filed December 27, 2018
Before: M. Margaret McKeown, William A. Fletcher,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge McKeown
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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SUMMARY**
Federal Arbitration Act
The panel affirmed the district court’s denial of a petition
to vacate an arbitral award, based on the alternative ground
that the petition of vacatur was filed one day late.
The panel held that the petitioners-appellants timely
appealed to the Ninth Circuit where appellants filed their
notice of appeal within thirty days from the district court’s
entry of the order disposing of their timely post-judgment
motion. Fed. R. App. P. 4(a)(4). The panel rejected the
appellee’s argument that the appeal was untimely due to an
“improper” post-judgment motion because Fed. R. App.
P. 4(a)(4) does not consider the propriety of a post-judgment
motion.
The panel held that Federal Rule of Civil Procedure 6(a)
governed how to calculate the Federal Arbitration Act’s
three-month filing deadline under 9 U.S.C. § 12. Applying
the three-step process of Rule 6(a), the panel concluded that
the petition of vacatur was filed one day late.
COUNSEL
Vincent M. Spohn, Law Offices of Vincent M. Spohn
A.P.C., Napa, California, for Petitioners-Appellants.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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S TEVENS V . J IFFY LUBE INT’ L 3
Kirk C. Jenkins, Sedgwick LLP, Chicago, Illinois; Tara K.
Clancy, Michael L. Fox, and Robert D. Eassa, Sedgwick
LLP, San Francisco, California; for Respondent-Appellee.
OPINION
McKEOWN, Circuit Judge:
Three months and one day after an arbitrator ruled
against them, Randy and Elissa Stevens petitioned the
district court to vacate the arbitral award. Their petition was
one day late, and we affirm on that basis the district court’s
denial of the petition. In so doing, we hold that Federal Rule
of Civil Procedure 6(a) governs how to calculate the Federal
Arbitration Act’s three-month filing deadline, and we clarify
how to perform that calculation.
B ACKGROUND
For years, the Stevenses operated a service center as Jiffy
Lube franchisees. In 2013, Jiffy Lube declined to renew its
lease on the premises housing the service center, and the
Stevenses tried unsuccessfully to negotiate a new lease
directly with the landlord. Jiffy Lube terminated the
franchise agreement because the Stevenses lost the right to
possession of the premises.
Although the franchise agreement had a binding
arbitration provision, the Stevenses sued Jiffy Lube. Soon
after, however, the parties stipulated to dismissal in favor of
arbitration. Following arbitral proceedings, the arbitrator
issued a final award in favor of Jiffy Lube on September 14,
2016.

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On December 15, 2016, the Stevenses petitioned the
district court to vacate the arbitral award under the Federal
Arbitration Act (“FAA”), 9 U.S.C. § 10. On February 8,
2017, the district court entered judgment and a final order
that assumed without deciding that the petition was timely
and denied the petition on the merits. The Stevenses timely
filed a motion attacking the judgment under Federal Rules
of Civil Procedure 59 and 60. The district court denied the
motion, and the Stevenses appealed.
ANALYSIS
I. The Stevenses Timely Appealed to the Ninth Circuit
Because a timely appeal is a jurisdictional prerequisite,
we first address Jiffy Lube’s contention that the Stevenses
untimely filed their notice of appeal. Browder v. Dir., Dep’t
of Corr. of Ill., 434 U.S. 257, 264–65 (1978). The Stevenses
had 30 days to file an appeal, calculated “from the entry of
the order disposing of” their timely post-judgment motion.
Fed. R. App. P. 4(a)(4). The district court denied the post-
judgment motion on April 11, 2017, and the Stevenses filed
a notice of appeal 29 days later, on May 10, 2017.
Jiffy Lube invites us to disregard what it views as an
“improper” post-judgment motion, calculate the appeal
deadline from the entry of judgment, and deem the notice of
appeal untimely. We have noted that “a judgment under § 13
of the FAA is not subject to Federal Rules of Civil Procedure
59 or 60.” Chiron Corp. v. Ortho Diagnostic Sys., Inc.,
207 F.3d 1126, 1133 (9th Cir. 2000). But the unavailability
of this remedy is not relevant for tolling purposes, as Federal

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S TEVENS V . J IFFY LUBE INT’ L 5
Rule of Appellate Procedure 4(a)(4) does not consider the
propriety of a post-judgment motion.1
Rather, to toll the appeal deadline, the post-judgment
motion must merely be timely, “under the Federal Rules of
Civil Procedure,” and among the types of motions listed in
Federal Rule of Appellate Procedure 4(a)(4)(A)(i)–(vi).
Fed. R. App. P. 4(a)(4). Consistent with these minimal
requirements, our sister circuits have disregarded post-
judgment motions not when they merely lack merit, but
when they contravene the Federal Rules of Civil Procedure.
See, e.g., State Nat’l Ins. Co. v. Cty. of Camden, 824 F.3d
399, 405–06 (3d Cir. 2016) (disregarding a Rule 60 motion
challenging a non-final order, because Rule 60 permits relief
from only a “final judgment, order, or proceeding”);
Feldberg v. Quechee Lakes Corp., 463 F.3d 195, 197
(2d Cir. 2006) (disregarding a “skeletal” Rule 59 motion,
because the motion failed to satisfy Rule 7’s requirement
that it “state with particularity” the grounds on which it was
based). To the extent the post-judgment motion must be
proper, it is in this limited sense under the Federal Rules.
That the Stevenses’ post-judgment motion was
unavailing (or even unavailable) does not render it a
procedural nullity. We decline the invitation to inject a
“properness” requirement that tethers the tolling effects of a
1 The Eleventh Circuit remarked, in addressing an earlier version of
Federal Rule of Appellate Procedure 4, that a “timely and proper Rule
59 motion . . . tolls the running of the time for taking an appeal.” Burnam
v. Amoco Container Co., 738 F.2d 1230, 1232 (11th Cir. 1984). But
neither Burnam nor later cases relying on Burnam suggest that the
motion must be “proper” in the sense Jiffy Lube argues here. See, e.g.,
Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1272 (11th
Cir. 2001) (citing Burnam, 738 F.2d at 1231).

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timely post-judgment motion to its merits. The notice of
appeal was timely.
II. The Petition to Vacate Was Untimely
The petition to vacate the arbitral award is another
matter. The FAA requires notice to be “served upon the
adverse party or his attorney within three months after the
award is filed or delivered.” 9 U.S.C. § 12. The arbitrator
delivered the final award on September 14, 2016, and the
Stevenses filed this lawsuit and served Jiffy Lube on
December 15, 2016.
The threshold question is whether Federal Rule of Civil
Procedure 6(a) or the FAA governs how to calculate the
three-month deadline under 9 U.S.C. § 12. We conclude that
Rule 6(a) provides the controlling protocol.
The Federal Rules of Civil Procedure apply to FAA
proceedings unless the FAA “provide[s] other procedures.”
Fed. R. Civ. P. 81(a)(6)(B). The FAA grants petitioners
three months to petition for vacatur, but it does not “provide
. . . procedures” for calculating the “within three months”
period. Id.; 9 U.S.C. § 12. Indeed, the Advisory Committee
treated identical statutory language as the paradigmatic
situation in which Rule 6(a) applies: “[I]f a filing is required
to be made ‘within 10 days’ or ‘within 72 hours,’ subdivision
(a) describes how that deadline is computed.” Fed. R. Civ.
P. 6 advisory committee’s note to 2009 amendment.
For that detail, then, we look to Rule 6:
When the period is stated in days or a longer
unit of time: (A) exclude the day of the event
that triggers the period; (B) count every day,
including intermediate Saturdays, Sundays,

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S TEVENS V . J IFFY LUBE INT’ L 7
and legal holidays; and (C) include the last
day of the period, but if the last day is a
Saturday, Sunday, or legal holiday, the period
continues to run until the end of the next day
that is not a Saturday, Sunday, or legal
holiday.
Fed. R. Civ. P. 6(a)(1). Applying this three-step process, the
Stevenses filed their petition one day late. At step one, we
exclude the first day, September 14, 2016, when the
arbitrator delivered the final award. At step two, we
calculate three months from September 15, 2016. The first
month began September 15 and concluded October 14; the
second month began October 15 and concluded November
14; and the third month began November 15 and concluded
December 14. Step three requires no adjustment because
December 14, 2016, was a Wednesday and not a legal
holiday.
The Stevenses dispute only the calculation at step two,
arguing that three months from September 15, 2016, was
December 15, 2016. Not so. “[C]ount[ing] every day,” Fed.
R. Civ. P. 6(a)(1)(B), a month beginning on the fifteenth
concludes on the fourteenth of the following month—just as
the month beginning January 1 concludes on January 31, not
February 1; and just as the week beginning on Monday
concludes on Sunday, not the following Monday. See
Minasyan v. Mukasey, 553 F.3d 1224, 1227–28 (9th Cir.
2009) (applying the same rationale to the “within one year”
deadline under Section 208 of the Immigration and
Nationality Act).
Plain meaning and basic logic compel this result. It also
comports with common sense: December 14 is within three
months of September 14, but December 15 is not. Rule 6

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provides a mechanistic process to reach this intuitive result.
Here, that calculation renders untimely the Stevenses’
petition for vacatur. Because we may affirm on any ground
supported by the record, we hold that the district court
properly denied the petition.2 See Cassirer v. Thyssen-
Bornemisza Collection Found., 862 F.3d 951, 974 (9th Cir.
2017).
AFFIRMED.
2 We do not reach the merits of the petition. Because the Stevenses’
motion to strike (Dkt. 24) pertains only to Jiffy Lube’s merits argument,
we deny the motion as moot.

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