                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      MAR 23 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

 ERVIN MIDDLETON, Jr.; ANN GATES                 No. 16-15151
 MIDDLETON,
                                                 D.C. No. 2:15-cv-00943-RCJ-
                  Plaintiffs-Appellants,         GWF

   v.
                                                 MEMORANDUM*
 GUARANTEED RATE, INC.; WELLS
 FARGO BANK, NA, DBA Wells Fargo
 Home Mortgage, Inc.,

                  Defendants-Appellees.

                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                             Submitted March 8, 2017**

Before:       LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

        Ervin and Ann Middleton appeal pro se from the district court’s order

denying their second motion for reconsideration. We have jurisdiction under 28

U.S.C. § 1291. We affirm.


        *
             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).
      In their opening brief, the Middletons fail to challenge the district court’s

order denying their second motion for reconsideration, and they have therefore

waived any such challenge. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.

1999) (“[O]n appeal, arguments not raised by a party in its opening brief are

deemed waived.”); see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994)

(“We will not manufacture arguments for an appellant . . . .”).

      The filing of the second motion for reconsideration did not toll the time to

appeal the underlying judgment. See Swimmer v. IRS, 811 F.2d 1343, 1344-45

(9th Cir. 1987), abrogated on other grounds by Briones v. Riviera Hotel & Casino,

116 F.3d 379 (9th Cir. 1997). Thus, we do not consider the Middletons’

contentions regarding the merits of the district court’s order dismissing their

action, or the district court’s order denying their first motion for reconsideration,

because the Middletons failed to file a timely notice of appeal as to those orders.

See Fed. R. App. P. 4(a)(1)(A) (notice of appeal must be filed within 30 days of

judgment); Stephanie-Cardona LLC v. Smith’s Food & Drug Ctrs., Inc., 476 F.3d

701, 703 (9th Cir. 2007) (“A timely notice of appeal is a non-waivable

jurisdictional requirement.”); Swimmer, 811 F2.d at 1344-45.

      The Middletons’ request for judicial notice, set forth in their reply brief, is

denied.

      AFFIRMED.


                                           2                                      16-15151
