                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 18 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DANITA PATTERSON,                               No. 16-56819

                Plaintiff-Appellant,            D.C. No. 2:11-cv-02935-R-MAN

 v.
                                                MEMORANDUM*
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
(MERS) As Nominee for Pacific Mutual
Funding Inc dba Pacific Residential
financing as beneficiary; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                    Manuel L. Real, District Judge, Presiding

                           Submitted January 16, 2018**

Before:      REINHARDT, TROTT, and HURWITZ, Circuit Judges.

      Danita Patterson appeals pro se from the district court’s order denying her

post-judgment Federal Rule of Civil Procedure 60(b) motion in her diversity action



      *
             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).
arising from a loan modification. We have jurisdiction under 28 U.S.C. § 1291.

We review for an abuse of discretion. Lemoge v. United States, 587 F.3d 1188,

1191-92 (9th Cir. 2009). We affirm.

      The district court did not abuse its discretion in denying Patterson’s motion

for relief from judgment because Patterson failed to establish grounds for relief.

See Fed. R. Civ. P. 60(b)(1) (the court may relieve a party from a final judgment or

order for mistake); Lemoge, 587 F.3d at 1192 (setting forth factors for excusable

neglect under Rule 60(b)(1)); Casey v. Albertson’s Inc., 362 F.3d 1254, 1260 (9th

Cir. 2004) (to prevail under Rule 60(b)(3), “moving party must prove by clear and

convincing evidence” that judgment was obtained through fraud,

misrepresentation, or other misconduct that was not “discoverable by due diligence

before or during the proceedings”).

      To the extent that Patterson challenges the underlying judgment, we lack

jurisdiction because the notice of appeal was untimely as to the judgment. See

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

entry of judgment or order appealed from); 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.”); see also Fed. R. App. P.

(4)(A)(vi) (a motion under Fed. R. Civ. P. 60(b) extends the time to file an appeal

if the motion is filed no later than 28 days after judgment is entered).


                                           2                                  16-56819
      We do not consider documents and facts not presented to the district court.

See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts

not presented to the district court are not part of the record on appeal.”).

      Appellees’ request for judicial notice, set forth in their answering brief, is

granted.

      Patterson’s emergency “motion for stay pending appeal” (Docket Entry No.

41) is denied.

      AFFIRMED.




                                           3                                    16-56819
