DONG v. CARSON (2019)

MEMORANDUM ***

Joseph Dong appeals the district court’s denial of relief under Federal Rule of Civil Procedure 60(b)(1) and (b)(6). We have jurisdiction under 28 U.S.C. § 1291 and affirm.

First, Rule 60(b)(1) allows courts to “relieve a party or a party’s legal representative from a final judgment on the basis of mistake, inadvertence, surprise, or excusable neglect.” Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223 (9th Cir. 2000). When determining whether to grant relief for late filings or failures to appear under Rule 60(b)(1) for excusable neglect, we apply the test set forth in Pioneer and Briones. See Pioneer Investment Services Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381–82 (9th Cir. 1997). We evaluate four factors: “(1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” Bateman, 231 F.3d at 1223–24 (citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489). Ignorance and carelessness do not quality for Rule 60(b)(1) relief. See Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1043 (9th Cir. 1992).

Here, the district court properly applied the four Pioneer-Briones factors when Dong’s counsel failed to oppose a motion to dismiss. The district court concluded that the first factor weighed slightly against relief because six years had passed since the alleged discriminatory events. As to the second factor, the one-year delay before Dong filed the Rule 60 motion weighed heavily against relief. The district court also thoroughly discussed the third factor, concluding that the delay in filing the Rule 60 motion and Dong’s counsel’s ability to do other work during that time period weighed against relief. As to the final factor, Dong appeared to act in good faith which weighed slightly in his favor, but not enough to overcome the other factors.

Rule 60(b)(6) is a catch-all rule sparingly allowing for relief from a final judgment in “extraordinary circumstances” to prevent “manifest injustice.” See Community Dental Servs. v. Tani, 282 F.3d 1164, 1171–72 (9th Cir. 2002); United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (1993). Here, Dong has failed to show extraordinary circumstances. Therefore, the district court did not abuse its discretion in denying the Rule 60 motion.¹

AFFIRMED.

FOOTNOTES

1.   We do not reach the merits of the underlying judgment. See Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991) (“An appeal from a denial of a Rule 60(b) motion brings up only the denial of the motion for review, not the merits of the underlying judgment”).