United States of America, Plaintiff-counter-defendant-appellee, v. John P. Wilde; Eileen Lipari, Defendants-appellants,gerald J. Landsberger; Betty A. Landsberger,defendant-counter-claim-3rd-party-plaintiffs-appellants, v. Burlington N. Rr, Third-party-defendant, 112 F.3d 518 (9th Cir. 1997)Annotate this Case
Before: BROWNING, THOMPSON and HAWKINS, Circuit Judges.
Gerald Landsberger and other taxpayers (collectively "Landsberger") appeal pro se the district court's denial of their motion to extend time to file an appeal, pursuant to Fed. R. App. P. 4(a) (6), from the district court's denial of their motion for a new trial in an action brought by the United States, seeking federal income tax assessments.
Landsberger contends that he did not receive timely notice of the district court's order denying the new trial motion, and further contends that the district court erred in requiring a showing of "excusable neglect" before it would grant Landsberger's motion to extend the time for filing a notice of appeal.
" [T]he concept of excusable neglect has no place in the application of [Fed. R. App. P. ] Rule 4(a) (6)." Nunley v. City of Los Angeles, 52 F.3d 792, 798 (9th Cir. 1995). The district court, therefore, erred in applying an excusable neglect analysis. The appropriate inquiry in this case is a determination of: 1) whether Landsberger received notice of the district court order; and 2) whether any party would be prejudiced pursuant to Rule 4(a) (6), id.
VACATED AND REMANDED.