OUT OF THE BOX ENTERPRISES LLC v. EL PASEO JEWELRY EXCHANGE INC (2017)

MEMORANDUM **

Raju Mehta filed a notice of appeal in February 2013. In October 2013, El Paseo Jewelry Exchange, Inc., El Paseo Jewelry, Inc., and Mehta (collectively, “El Paseo”) filed a motion pursuant to Federal Rule of Civil Procedure 60(b) for relief from judgment based on alleged newly discovered evidence and/or fraud. The district court reasoned that because El Paseo had filed its 60(b) motion after the twenty-eight-day deadline contained in Federal Rule of Appellate Procedure 4(a)(4)(B)(i), the court “no longer ha[d] jurisdiction over this matter pending the appeal.” The court added that it was not “inclined to entertain the Motion pursuant to Federal Rule of Civil Procedure 62.1” and denied the motion on those grounds.

Federal Rule of Civil Procedure 62.1(a) provides:

If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may:

(1) defer considering the motion;

(2) deny the motion; or

(3) state ․ that it would grant the motion if the court of appeals remands for that purpose․

Although the district court lacked the authority to grant El Paseo's Rule 60(b) motion without a remand from our court, see Fed. R. Civ. P. 62.1(b)-(c), it had jurisdiction to deny the motion on the merits, defer consideration, or issue an indicative ruling. See Fed. R. Civ. P. 62.1(a); see also NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 612 n.1 (9th Cir. 2016) (“We reject Safe Cig's argument that the district court erred in taking new evidence and considering the Rule 60(b) motion before the case was remanded from this court.”), as amended on denial of reh'g en banc(Oct. 21, 2016).

Out of the Box argues that the district court's statement that it was not “inclined to entertain” the motion under Rule 62.1 was a denial on the merits. We disagree. Nothing in the order suggests that the district court reached the merits—rather, the order suggests that the district court erroneously believed that it entirely lacked jurisdiction to entertain the motion.

Accordingly, we VACATE the district court's order denying El Paseo's Rule 60(b) motion and REMAND for the district court to resolve El Paseo's Rule 60(b) motion within the limits of Rule 62.1.

VACATED and REMANDED.