                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 18 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

ROBERT W. MOORE,                                 No. 13-17109

              Plaintiff–Appellant,               D.C. No. 2:11-cv-01020-PMP-
                                                 NJK
 v.

MORTGAGE ELECTRONIC                              MEMORANDUM*
REGISTRATION SYSTEMS, INC. and
RECONTRUST COMPANY, NA,

              Defendants–Appellees.

                    Appeal from the United States District Court
                             for the District of Nevada
                   Philip M. Pro, Senior District Judge, Presiding

                             Submitted May 13, 2016**
                             San Francisco, California

Before: WARDLAW, PAEZ, and BEA, Circuit Judges.

      Robert Moore brought this diversity action against Mortgage Electronic

Registration Systems, Inc. and ReconTrust Company, NA (collectively, “MERS”),


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
         The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

                                          1
contending that MERS recorded a fraudulent assignment of the note and deed of

trust on Moore’s home. Moore’s operative first amended complaint contained four

causes of action: one count of violating Nevada Revised Statutes § 205.372, which

prohibits mortgage-lending fraud, and three counts of common-law fraud. The

district court granted MERS’s motion for summary judgment, finding that the

applicable version of Nevada Revised Statutes § 205.372 did not include a private

right of action and that Moore had not raised a genuine issue of material fact as to

his justifiable reliance on any misstatement by MERS, which is one element of

common-law fraud. Moore filed a motion for reconsideration, which the district

court denied. Moore appeals. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      1. We are satisfied that the amount-in-controversy requirement has been

met. Moore filed his original complaint in federal court, alleging an amount in

controversy exceeding $75,000, and the amended complaint, which alleges a

reduced amount in controversy of $10,000 or more, does not establish to a “legal

certainty” that the amount-in-controversy requirement has not been met. St. Paul

Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288–90 (1938); see also 28

U.S.C. § 1332(a); Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 400–04 (9th




                                          2
Cir. 1996). We therefore discharge the order to show cause issued on February 22,

2016.

        2. Moore’s notice of appeal includes only the district court’s order denying

his motion for reconsideration. More importantly, the notice of appeal was

untimely as to the district court’s judgment in favor of MERS. The district court

entered judgment on July 15, 2013, and a notice of appeal from that judgment was

due within 30 days of that date. See Fed. R. App. P. 4(a)(1)(A). Moore filed the

notice of appeal on October 21, 2013, well after the 30-day deadline.

        Although a motion under Federal Rule of Civil Procedure 59(e) or 60(b) can

extend the time to file a notice of appeal, such motion must be filed in the district

court within 28 days of entry of judgment. See Fed. R. App. P. 4(a)(4)(A); Fed. R.

Civ. P. 59(e); see also United States v. Comprehensive Drug Testing, Inc., 513

F.3d 1085, 1097–1101 (9th Cir. 2008), adopted in pertinent part, 621 F.3d 1162,

1167 (9th Cir. 2010) (en banc) (per curiam). Here, Moore’s motion for

reconsideration of the district court’s order granting MERS’s motion for summary

judgment, which we construe as filed under Federal Rule of Civil Procedure




                                           3
60(b),1 was filed on August 14, 2013, or 30 days after the district court entered

judgment. Moore’s motion for reconsideration was thus ineffective to extend the

time to file a notice of appeal from the district court’s judgment.

      A late notice of appeal deprives us of jurisdiction to review the judgment, as

well as the orders producing it. See, e.g., Cruz v. Int’l Collection Corp., 673 F.3d

991, 1001 (9th Cir. 2012); Comprehensive Drug Testing, 513 F.3d at 1097–1101.

And an appeal from an order denying a motion for reconsideration “brings up only

the denial of the motion for review, not the merits of the underlying judgment.”

McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc) (per curiam)

(citation omitted).

      3. We do have jurisdiction to review the district court’s order denying

Moore’s motion for reconsideration, as the notice of appeal was timely as to that

      1
        In his motion for reconsideration, Moore cited Federal Rules of Civil
Procedure 59(e) and 60(a), but not Federal Rule of Civil Procedure 60(b). We
assume that was a typo, as Federal Rule of Civil Procedure 60(a) concerns clerical
mistakes, oversights, and omissions in a judgment, and “a motion for
reconsideration of summary judgment is appropriately brought under either Rule
59(e) or Rule 60(b).” Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991).
The district court did not state under which rule it evaluated Moore’s motion, but
we construe Moore’s motion as filed under Federal Rule of Civil Procedure 60(b)
because it was not filed within the 28-day deadline imposed by Federal Rule of
Civil Procedure 59(e). See Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp.,
248 F.3d 892, 898–99 (9th Cir. 2001) (a motion for reconsideration is treated as a
motion under Federal Rule of Civil Procedure 59(e) if it is filed timely under that
rule and as a motion under Federal Rule of Civil Procedure 60(b) otherwise).

                                           4
order. However, the parties have presented no argument regarding the district

court’s order denying Moore’s motion for reconsideration, the only order over

which we have jurisdiction. We therefore deem the issue waived. See, e.g.,

Affordable Hous. Dev. Corp. v. City of Fresno, 433 F.3d 1182, 1193 (9th Cir.

2006). And, even if the issue were not waived, Moore neither raised nor

established any grounds for relief under Federal Rule of Civil Procedure 60(b) in

his motion for reconsideration, and the district court thus did not abuse its

discretion in denying that motion. See Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d

1255, 1263 (9th Cir. 1993) (“Rule 60(b) ‘provides for reconsideration only upon a

showing of (1) mistake, surprise, or excusable neglect; (2) newly discovered

evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or

(6) extraordinary circumstances which would justify relief.’” (citation omitted));

see also United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc) (a

district court abuses its discretion if it fails to “identif[y] and appl[y] the correct

legal rule to the relief requested” or if it resolves a motion based on a “factual

finding that [is] illogical, implausible, or without support in inferences that may be

drawn from the facts in the record”). We affirm the district court’s decision.




                                             5
      Each party shall bear its own costs on appeal.2

      ORDER TO SHOW CAUSE DISCHARGED; AFFIRMED.




      2
         As is permitted under Ninth Circuit Rule 30-1.2, Moore did not file
excerpts of record. MERS did file excerpts of record, unhelpfully providing over
1,700 pages of material from the district court’s docket. Oddly, MERS left out the
one-page notice of appeal and the district court’s docket sheet, which were
arguably the documents we most needed to resolve this appeal properly. We
encourage MERS to exercise greater discretion in selecting what to include in the
excerpts of record. See 9th Cir. R. 30-1.1 (“The purpose of the excerpts of record is
to provide each member of the panel with those portions of the record necessary to
reach a decision.”); 9th Cir. R. 30-1.7 (“If appellant did not file excerpts of
record . . . the contents of appellee’s supplemental excerpts are limited to the
district court docket sheet, the notice of appeal, the judgment or order appealed
from, and any specific portions of the record cited in appellee’s brief.”). Ordinarily,
when we affirm a district court’s decision, we tax costs against the appellant, see
Fed. R. App. P. 39(a)(2), but we see no reason to saddle Moore with MERS’s
costs, including the costs of printing MERS’s bloated excerpts of record, when
both parties failed to address the key issues in this case. Therefore, the parties shall
bear their own costs on appeal.

                                           6
