ALMONT AMBULATORY SURGERY CENTER LLC LLC LLC LLC LLC LLC LLC LLC LLC LLC LLC LLC 800 LLC LLC v. INTERNATIONAL LONGSHORE AND WAREHOUSE UNION ILWU PMA (2019)

United States Court of Appeals, Ninth Circuit.

ALMONT AMBULATORY SURGERY CENTER, LLC, a California limited liability company; Ciro Surgery Center, LLC, a California limited liability company; East Bay Ambulatory Surgery, LLC, a California limited liability company; Modern Institute of Plastic Surgery & Antiaging, Inc., a California corporation; New Life Surgery Center, LLC, dba Beverly Hills Surgery Center, a California limited liability company; Orange Grove Surgery Center, LLC, a California limited liability company; San Diego Ambulatory Surgery Center, LLC, a California limited liability company; West Hills Surgery Center, LLC, a California limited liability company; Independent Medical Services, Inc., a California corporation; Bakersfield Surgery Institute, LLC; Valencia Ambulatory Surgery Center, LLC; Palmdale Ambulatory Surgery Center, LLC; Property Care Insurance, Inc.; San Joaquin Valley Surgery Center, LLC; Skin Cancer & Reconstructive Surgery Specialists of Beverly Hills, Inc.; Skin Cancer & Reconstructive Surgery Specialists of West Hills, Inc.; Surgery Center Mangement; Top Surgeons, LLC; Woodlake Ambulatory; 1-800-Get-Thin, LLC; Cindy Omidi; Julian Omidi; Michael Omidi; Valley Surgical Center, LLC, Plaintiffs-Appellants, v. INTERNATIONAL LONGSHORE AND WAREHOUSE UNION; Pacific Maritime Association; International Longshoremen’s and Warehousemen’s Union-Pacific Maritime Association Welfare Plan; ILWU-PMA Coastwise Indemnity Plan, Defendants-Appellees.

Nos. 16-56241, 17-55285

Decided: June 11, 2019

Before: O’SCANNLAIN and FRIEDLAND, Circuit Judges, and EZRA,** District Judge.

Francis J. Flynn, Jr., Attorney, Law Office of Francis J. Flynn, Jr., Los Angeles, CA, for Plaintiffs - Appellants Jonathan A. Braunstein, Attorney, Seyfarth Shaw LLP, San Francisco, CA, Christine Sue Hwang, Esquire, Attorney, Lindsay Rose Nicholas, Attorney, Leonard Carder, LLP, San Francisco, CA, for Defendant - Appellee International Longshore and Warehouse Union Aaron Belzer, Attorney, Seyfarth Shaw, LLP, Los Angeles, CA, Jonathan A. Braunstein, Attorney, Ward D. Kallstrom, Esquire, Attorney, Seyfarth Shaw LLP, San Francisco, CA, Christine Sue Hwang, Esquire, Attorney, Lindsay Rose Nicholas, Attorney, Leonard Carder, LLP, San Francisco, CA, for Defendant - Appellee Pacific Maritime Association Aaron Belzer, Attorney, Joseph A. Escarez, Attorney, Christopher Lee, Esquire, Attorney, Seyfarth Shaw, LLP, Los Angeles, CA, Jonathan A. Braunstein, Attorney, Ward D. Kallstrom, Esquire, Attorney, Kevin J. Lesinski, Attorney, Eden Edwards Anderson, Seyfarth Shaw LLP, San Francisco, CA, Christine Sue Hwang, Esquire, Attorney, Lindsay Rose Nicholas, Attorney, Nicole E. Teixeira, Leonard Carder, LLP, San Francisco, CA, for Defendant - Appellee International Longshoremen's and Warehousemen's Union-Pacific Maritime Association Welfare Plan Aaron Belzer, Attorney, Joseph A. Escarez, Attorney, Christopher Lee, Esquire, Attorney, Seyfarth Shaw, LLP, Los Angeles, CA, Jonathan A. Braunstein, Attorney, Ward D. Kallstrom, Esquire, Attorney, Kevin J. Lesinski, Attorney, Seyfarth Shaw LLP, San Francisco, CA, Christine Sue Hwang, Esquire, Attorney, Lindsay Rose Nicholas, Attorney, Nicole E. Teixeira, Leonard Carder, LLP, San Francisco, CA, for Defendant - Appellee ILWU-PMA Coastwise Indemnity Plan

MEMORANDUM ***

Plaintiff Almont Ambulatory Surgery Center, LLC along with seven other surgical centers and one physicians’ medical group (collectively “Almont”) appeal five orders by the district court. Because the facts are known to the parties, we do not repeat them here.

We reject Almont’s first challenge on appeal—namely, that the district court improperly dismissed the case for lack of prosecution. See Fed. R. Civ. P. 41(b). Almont’s failure to secure counsel by the court’s deadline constituted a lengthy and unreasonable delay in prosecution and prejudiced the employee welfare plan’s ability to defend against suit. In light of the factors described in Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986), the court did not abuse its discretion.

Nor did the court abuse its discretion in denying Almont’s motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). Almont’s proffered reasons for failing to retain counsel by the court’s deadline are contradicted by the record and do not establish excusable neglect as required by Rule 60(b). See Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1222 (9th Cir. 2000).

Almont’s remaining challenges to the district court’s denials of its motion for disqualification, its application for in camera review, and its Federal Rule of Civil Procedure 59(e) motion echo those raised in Almont Ambulatory Surgery Center, LLC v. UnitedHealth Group, Inc., No. 17-55301, ––– F. App’x –––– (9th Cir. ––––, 2019). We reject them for the same reasons. Id.¹

AFFIRMED.

FOOTNOTES

1. We deny Almont’s motion to file certain excerpts of record in camera and under seal, filed with this court on April 24, 2018. We also deny Almont’s motions to supplement the record on appeal and to file certain exhibits in camera and under seal, filed August 30, 2018.

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