Maria G. Munoz, As Joint Administratrix of the Estate Ofdeceased (joe Falcon) Plaintiff-appellant, v. City of Martinez, Warren Ruff, Park Kibler, N.j. Hannigan,commissioner of the California Highway Patrol,defendants-appellees, 134 F.3d 378 (9th Cir. 1998)Annotate this Case
Submitted Jan. 12, 1998. **Decided Jan. 15, 1998
Before: BROWNING, KLEINFELD, and THOMAS, Circuit Judges.
Maria G. Munoz appeals pro se the district court's denial of her motion for leave to reopen the time to appeal the court's dismissal of her 42 U.S.C. § 1983 action.1 We review for abuse of discretion a district judge's denial of a motion brought under Fed. R. App. P. 4(a) (6). See Nunley v. City-of Los Angeles, 52 F.3d 792, 794 (9th Cir. 1995).
When a party has not received actual notice of judgment, a motion to reopen the time to appeal a dismissal must be "filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier ..." Fed. R. App. P. 4(a) (6). Since the rule permitted Munoz and Falcon at least seven days to file their motion, intermediate Saturdays, Sundays, and Legal holidays are included in the computation of filing time. See Fed. R. App. P. 26(a). A filing is timely only if the clerk receives the papers within the time fixed for filing. See Fed. R. App. P. 25.
Here, the district court entered judgment for defendants on October 25, 1996. Munoz and Falcon contend that they first received notice of entry of judgment on December 31, 1996, and that they mailed their motion to reopen the time to appeal the dismissal of their action on January 7, 1997. The motion was filed by the clerk on January 10, 1997. We conclude that the district court did not abuse its discretion in denying as untimely Munoz and Falcon's motion for leave to reopen time to appeal. See Fed. R. Civ. P. 4(a) (6).
We reject Munoz' remaining contentions as without merit. We deny her request for appointment of counsel.
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4. Accordingly, appellant's request for oral argument is denied
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3
The instant appeal is based on Munoz' April 4, 1997 notice of appeal from the denial of her motion for reconsideration. We have previously considered and dismissed a notice of appeal filed January 10, 1997