Unpublished Disposition, 922 F.2d 845 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 922 F.2d 845 (9th Cir. 1989)

Joseph E. SHURANCE, PlaintiffandWilliam F. Woods, Appellant,v.PLANNING CONTROL INTERNATIONAL INC., DefendantandCullinet Software, Inc. Defendant-Appellee.

No. 89-55887.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 5, 1990.Decided Jan. 8, 1991.

Before WILLIAM A. NORRIS, K.K. HALL and DAVID R. THOMPSON, Circuit Judges.


William F. Woods appeals the imposition of sanctions by Magistrate Irma E. Gonzalez. Because Woods failed to timely appeal to this court, we dismiss this case for lack of jurisdiction.

* Woods represented the plaintiff in a suit alleging copyright infringement. On December 17, 1987, magistrate Irma Gonzalez, pursuant to 28 U.S.C. § 1927, ordered Woods to pay sanctions of $5,062.50, for filing a "frivolous and vexatious" motion.

Woods filed a motion for reconsideration with the district court, which was denied on November 23, 1988. On December 12, Woods filed a three-page document entitled "Notice of Motion for Clarification," without any accompanying points and authorities. On May 16, 1989, Woods filed another document, a "Motion for Clarification." On June 15, the court summarily denied the May 16 motion. Woods appealed on July 13, 1989.


We review de novo whether Woods' appeal was timely filed, notwithstanding the prior ruling of the motions panel. Hard v. Burlington Northern R.R. Co., 870 F.2d 1454, 1458 (9th Cir. 1989) (" [T]he merits panel has an independent duty to examine jurisdictional questions.... [T]he time for filing an appeal is 'mandatory and jurisdictional.' ").

Under Fed. R. App. P. 4(a) (1), Woods had only thirty days from the entry of the district court's order in which to file his notice of appeal. The order was entered on November 23, 1988. Woods did not appeal the order until July 13, 1989. Thus, the thirty-day limit had long since run.

On December 12, 1988, however, Woods filed a "Notice of Motion for Clarification." Under Fed. R. App. P. 4(a) (4), a timely motion under Fed. R. Civ. P. 59 for a new trial or to amend a judgment or a timely motion under Rule 52 to amend or make additional findings of fact will toll the time for appeal until the motion is denied. It is unclear, however, whether the document filed by Woods on December 12 was either a Rule 52 or a Rule 59 motion.

This issue need not be resolved, however, since Woods failed to meet the timeliness requirements of Rules 52 and 59. Each of these Rules requires that the motion be filed "not later than ten days after entry of judgment." December 12 was nineteen days after the order was entered. Although under Rule 6(a) intervening weekends and holidays are not included in the computation for the purposes of Rules 52 and 59, Woods still filed the document on the twelfth day after the entry of the order. Therefore, Woods' motion was untimely.1  An untimely motion cannot toll the running of the period during which notice of appeal must be filed. See Saunders v. Cabinet Makers and Millman, 549 F.2d 1216 (9th Cir. 1977). Woods' appeal was not timely filed.

Nor is this a case where "unique circumstances," such that we may waive the timeliness requirement, apply. According to United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265, 1268 (9th Cir. 1985), unique circumstances apply when

the appellant reasonably and in good faith relied upon judicial action that indicated to the appellant that his assertion of his right would be timely, so long as the judicial action occurred prior to the expiration of the official time period such that the appellant could have given timely notice had he not been lulled into inactivity.

The district court took no action that might have led Woods to believe that he had tolled the Fed. R. App. P. 4(a) time requirements, until well after the thirty days had expired. DISMISSED FOR LACK OF JURISDICTION.


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


Cullinet argues that Woods abandoned his December 12 motion when he filed his May 16 motion, which included new arguments and failed to mention the earlier motion. We need not address this issue since the original document was untimely

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