                                                                            FILED
                             NOT FOR PUBLICATION                             NOV 20 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



B. SPAIN,                                        No. 10-17559

               Plaintiff - Appellant,            D.C. No. 2:07-cv-00308-RCB

  v.
                                                 MEMORANDUM *
EMC MORTGAGE CORPORATION,
Affecting Interstate Commerce; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                   Robert C. Broomfield, District Judge, Presiding

                           Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       B. Spain appeals pro se from the district court’s order imposing a pre-filing

restriction on him as a vexatious litigant. We have jurisdiction under 28 U.S.C.

§ 1291. We review for an abuse of discretion. De Long v. Hennessey, 912 F.2d


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1144, 1146 (9th Cir. 1990). We affirm in part and dismiss in part.

      The district court did not abuse its discretion by entering a pre-filing order

against Spain after giving him notice and an opportunity to be heard, developing an

adequate record for review, making findings regarding Spain’s frivolous and

harassing litigation history, and tailoring the restriction narrowly. See id. at 1147-

48 (explaining factors for entry of pre-filing order).

      We lack jurisdiction to review the district court’s judgment dismissing

Spain’s action because Spain failed to file a timely notice of appeal from that

decision. See Fed. R. App. P. 4(a)(1), (4) (notice of appeal must be filed within

thirty days of order disposing of timely post-judgment tolling motion).

Accordingly, we dismiss that portion of the appeal.

      Defendants’ request for attorney’s fees is denied without prejudice to a

separately filed motion on the issue. See Fed. R. App. P. 38.

      AFFIRMED in part; DISMISSED in part.




                                           2                                      10-17559
