united-states-of-america-plaintiff-counter-defendant-appellee-v-john-p , 112 F.3d 518 ( 1997 )

112 F.3d 518

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Counter-Defendant-Appellee,
v.
John P. WILDE; Eileen Lipari, Defendants-Appellants,
Gerald J. LANDSBERGER; Betty A. Landsberger,
Defendant-Counter-Claim-3rd-Party-Plaintiffs-Appellants,
v.
BURLINGTON N. RR, Third-Party-Defendant.

No. 96-16419.

United States Court of Appeals, Ninth Circuit.

Submitted April 21, 1997.*
Decided April 25, 1997.

Before: BROWNING, THOMPSON and HAWKINS, Circuit Judges.

1

MEMORANDUM**

2

Gerald Landsberger and other taxpayers (collectively "Landsberger") appeal pro se the district court's denial of their motion to extend time to file an appeal, pursuant to Fed.R.App.P. 4(a)(6), from the district court's denial of their motion for a new trial in an action brought by the United States, seeking federal income tax assessments.

3

Landsberger contends that he did not receive timely notice of the district court's order denying the new trial motion, and further contends that the district court erred in requiring a showing of "excusable neglect" before it would grant Landsberger's motion to extend the time for filing a notice of appeal.

4

"[T]he concept of excusable neglect has no place in the application of [Fed.R.App.P.] Rule 4(a)(6)." Nunley v. City of Los Angeles, 52 F.3d 792, 798 (9th Cir.1995). The district court, therefore, erred in applying an excusable neglect analysis. The appropriate inquiry in this case is a determination of: 1) whether Landsberger received notice of the district court order; and 2) whether any party would be prejudiced pursuant to Rule 4(a)(6), id.

5

VACATED AND REMANDED.

*

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3