                                                                              FILED
                            NOT FOR PUBLICATION                                OCT 24 2014

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


NUSCIENCE CORPORATION, a                         No. 12-56405
California corporation,
                                                 D.C. No. 2:08-cv-02661-GAF-
              Plaintiff - Appellee,              FFM

  v.
                                                 MEMORANDUM*
ROBERT HENKEL,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                       Argued and Submitted August 8, 2014
                               Pasadena, California

Before: WARDLAW, CALLAHAN, and M. SMITH, Circuit Judges.

       Robert Henkel appeals the district court’s denial of his motion to set aside

the default judgment against him and to dismiss the underlying action against him

for lack of personal jurisdiction. Because Henkel’s notice of appeal was untimely,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
we dismiss his appeal for lack of jurisdiction. We also deny NuScience

Corporation’s motion for appellate sanctions.

      Notice of appeal must be filed “within 30 days after the entry of the

judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). Henkel filed his

notice of appeal on July 30, 2012, more than 30 days after the district court’s June

15, 2012 order denying the motion to vacate default judgment. Henkel’s appeal

was therefore untimely.

      Henkel’s time to appeal was not tolled by his attorney Stephen Abraham’s

Rule 60(b) motion requesting relief from the district court’s order holding

Abraham in contempt. The district court’s June 15 ruling contained two orders: (1)

an order denying Henkel’s motion to vacate the default judgment, and (2) an order

finding Abraham in contempt of court. Abraham’s Rule 60(b) motion for relief

from the contempt order could toll the time to file an appeal only from the

disposition underlying his Rule 60(b) motion—the district court’s order holding

Abraham in contempt. Fed. R. App. P. 4(a)(4)(A)(vi). While the district court’s

order denying Henkel’s Rule 60(b) motion to vacate was set forth in the same

document as the district court’s order of contempt against Abraham, that fact does

not make them the same order. The Federal Rules of Civil Procedure do not

require courts to file a separate document for an order disposing of a Rule 60


                                          2
motion. Fed. R. Civ. P. 58(a)(5). Henkel did not file a Rule 60 motion or any

other tolling motion in the district court in response to the order denying his

motion to vacate default judgment. Therefore, the clock ran on his time to file an

appeal from that order, rendering this appeal untimely. We therefore lack

jurisdiction to entertain this appeal. Browder v. Dir., Dept. of Corr. of Ill., 434

U.S. 257, 264 (1978) (“This 30-day time limit [on filing notice of appeal] is

mandatory and jurisdictional.” (internal quotation marks omitted)).

      While we agree with NuScience that Henkel’s appeal was untimely, we do

not believe Henkel’s appeal was so frivolous as to warrant appellate sanctions

under Federal Rule of Appellate Procedure 38. See Adriana Int’l Corp. v. Thoeren,

913 F.2d 1406, 1417 (9th Cir. 1990) (“An appeal is considered frivolous if the

result is obvious or the appellant’s arguments are wholly without merit.”). Nor

were the deficiencies in Henkel’s excerpts of record egregious enough to warrant

sanctions under Circuit Rule 30.

      Appeal DISMISSED; motion for appellate sanctions DENIED.




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