Margaret Nalley v. Valeant Pharmaceuticals

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARGARET ANN NALLEY, No. 18-15038

Plaintiff-Appellant, D.C. No. 3:16-cv-03835-EDL

v. MEMORANDUM* VALEANT PHARMACEUTICALS NORTH AMERICA, a Delaware corporation; VALEANT PHARMACEUTICALS INTERNATIONAL, a Delaware corporation,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Elizabeth D. Laporte, Magistrate Judge, Presiding**

Submitted December 17, 2018*** Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

Margaret Ann Nalley appeals pro se from the district court’s order denying her motion for an extension of time to file a notice of appeal. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Pincay v. Andrews, 389 F.3d 853, 858 (9th Cir. 2004) (en banc). We affirm.

The district court did not abuse its discretion by denying Nalley’s untimely motion for an extension of time to file a notice of appeal because Nalley failed to demonstrate good cause or excusable neglect. See Fed. R. App. P. 4(a)(5)(A) (the district court may extend time for filing notice of appeal upon showing of good cause or excusable neglect); Pincay, 389 F.3d at 858-60 (discussing excusable neglect and explaining that this court must affirm unless there is a definite and firm conviction that the district court committed a clear error of judgment); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (“[P]ro se litigants are bound by the rules of procedure.”).

The district court also considered Nalley’s untimely motion for an extension of time as a motion to reopen the time to file an appeal under Federal Rule of Appellate Procedure 4(a)(6). The district court did not abuse its discretion by denying Nalley’s motion because Nalley, who was represented by counsel at summary judgment, failed to show that she did not receive notice of the entry of

2 18-15038 judgment. See Fed. R. App. P. 4(a)(6); Nunley v. City of Los Angeles, 52 F.3d 792, 794-96 (9th Cir. 1995) (standard of review; the movant bears the burden of proving non-receipt of the entry of judgment).

We reject as unsupported by the record Nalley’s contentions concerning bias of the magistrate judge.

In light of our disposition, we lack jurisdiction to consider Nalley’s contentions regarding the district court’s summary judgment and the merits of her claims. See Fed. R. App. P. 4(a)(1)(A) (in civil cases a notice of appeal must be filed within thirty days after entry of the judgment); United States v. Vaccaro, 51 F.3d 189, 191 (9th Cir. 1995) (the timely filing of a notice of appeal is a jurisdictional requirement).

AFFIRMED.

Footnotes

[3] 18-15038