The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation
Plaintiff Reno Fuentes Rios is a state prisoner, proceeding pro se, seeking relief pursuant to 42 U.S.C. § 1983.
On November 21, 2007, this Court dismissed Rios's amended complaint with prejudice. (Doc. 23). Judgment was entered, pursuant to the Court's order, on November 26, 2007. (Doc. 24). On December 10, 2007, Rios filed a motion to vacate the judgment. (Doc. 25). On December 14, 2007, this Court denied that motion. (Doc. 26).
On March 19, 2008, Rios filed a motion for leave to appeal. (Doc. 28). This Court denied that motion on April 25, 2008, citing Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure, which provides that a party has thirty (30) days to file a notice of appeal with the district court clerk. FRAP Rule 4(a)(1)(A); (Doc. 29). Because there were no circumstances requiring tolling of the thirty (30) day period, Plaintiff's motion for leave to appeal was denied as untimely. See Fed. R. App. P. 4.
On May 21, 2008, Rios filed a notice of appeal in the Ninth Circuit Court of Appeals, appealing from this Court's November 26, 2007 order dismissing his amended complaint. (Doc. 30). On September 11, 2008, the Ninth Circuit dismissed the appeal for lack of jurisdiction. Rios v. CDC Director, Case No. 08-16328, Docket Entry 6642723. The panel concluded that "a review of the record demonstrates that this court lacks jurisdiction over this appeal because the May 21, 2008 notice of appeal was not filed or delivered to prison officials within 30 days from entry of the November 26, 2007 judgment or the December 14, 2007 order denying the motion to vacate the judgment." Id. The panel also concluded that "the district court did not abuse its discretion in denying appellant's March 19, 2008 motion for leave to appeal the judgment because the time to appeal was not tolled by any of the motions listed in Federal Rule of Appellate Procedure 4)a)(1)(A) and appellant's motion did not meet the requirements of Federal Rule of Appellate Procedure 4(a)(6)." Id.
On October 6, 2008, Rios filed a "petition for panel rehearing and reconsideration from court order filed on September 11, 2008." Id. at Docket Entry 6667252 . In the petition, Rios contends that he did not receive this Court's "final order entered on December 14, 2007 denying appellant's motion to vacate judgment. Nor appellant had [sic] no idea that district's [sic] court entered such order because he never received any other order than Dec. 26, 2007."*fn1 Id.
In an order issued on December 10, 2008, the Ninth Circuit construed Rios's petition as "a motion for reconsideration of the order dismissing this appeal for lack of jurisdiction." Id. at Docket Entry 6734283. So construed, the panel provisionally granted the motion and remanded Rios's appeal "to the district court for the limited purpose of allowing [this] court to rule on appellant's motion to reopen the time to appeal from the December 14, 2007 order denying the motion to vacate the judgment."*fn2 Id.
In its December 10, 2008 order, the Ninth Circuit panel requested that this Court consider whether, under Fed. R. App. P. 4(a)(6), there is any basis upon which to reopen Rios's time to appeal from this Court's December 14, 2007 order, based on Rios's contention that he did not receive that order. Id
"Rule 4(a)(6) provides the exclusive means for extending appeal time for failure to learn that judgment has been entered." Mitchell v. Burt Vetterlein & Bushnell P.C. (In re ALEXANDER) , 197 F.3d 421, 425 (9th Cir. 2000) (as amended) (quoting 16A Charles Alan Wright et al., Federal Practice and Procedure § 3590.6 at 228 (3d ed. 1999)).
Fed. R. App. P. 4(a)(6) provides that
[t]he district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered . . . if all the following conditions are satisfied:
(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought ...