Timothy P. Demartini; Margie Demartini v. Michael J. Demartini; Renate Demartini

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY P. DEMARTINI; MARGIE
DEMARTINI,
Plaintiffs-Appellees,
v.
MICHAEL J. DEMARTINI; RENATE
DEMARTINI,
Defendants-Appellants.
No. 19-15596
D.C. No.
2:14-cv-02722-JAM-CKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted February 9, 2023 **
Submission Vacated February 9, 2023
Resubmitted May 31, 2023
San Francisco, California
Before: McKEOWN, BYBEE, and BUMATAY, Circuit Judges.
Appellants Michael and Renate DeMartini appeal the denial of various orders
entered by the district court. “Before proceeding to the merits of this dispute, we
* 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
MAY 31 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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must assure ourselves that we have jurisdiction.” United States v. McIntosh, 833
F.3d 1163, 1170 (9th Cir. 2016). Because we conclude we lack jurisdiction under
28 U.S.C. § 1291, we dismiss this appeal.
In their pro se notice of appeal filed on March 18, 2019, Appellants stated that
they were appealing four orders entered by the district court: (1) the May 30, 2018,
Interlocutory Judgment of Partition; (2) the August 22, 2018, minute order rejecting
the proposed plan for dividing the property; (3) the September 19, 2018, minute
order appointing a referee to oversee the partition; and (4) the March 1, 2019, order
denying Appellants’ “renewed motion to dismiss.” The March 1, 2019, order was
in response to Appellants’ January 11, 2019, motion, which the district court
construed as a motion to reconsider.
We have no jurisdiction over the May 30, August 22, and September 19 orders
as the notice of appeal was filed long after the 30-day deadline. See 28 U.S.C.
§ 2107; Fed. R. App. P. 4(a)(1)(A); Hanson v. Shubert, 968 F.3d 1014, 1017 (9th
Cir. 2020) (“The thirty-day time limit is mandatory and jurisdictional.”) (simplified).
While a motion to reconsider may toll the appeals period, Appellants’ January 11,
2019, motion to reconsider did not toll any order in the notice of appeal because it
was untimely and “[t]he filing of an untimely motion will not toll the running of the
appeal period.” Hanson, 968 F.3d at 1017–18; see Fed. R. Civ. P. 59(e) (establishing

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that a motion to amend a judgment must be filed no later than 28 days after the entry
of the judgment).
While the notice of appeal was timely as to the March 1, 2019, order denying
Appellants’ motion for reconsideration, we still lack jurisdiction because it is not an
appealable final order standing alone. “The denial of a motion for reconsideration
is immediately appealable if the underlying order is immediately appealable.”
Zamani v. Carnes, 491 F.3d 990, 994 (9th Cir. 2007). But even assuming any
underlying order in the notice of appeal was immediately appealable, Appellants’
window to appeal that underlying order has expired and they cannot now “use their
motion for reconsideration” to “resurrect their right to appeal the district court’s
order.” Hanson, 968 F.3d at 1019 (simplified).
DISMISSED for lack of jurisdiction.

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