MYERS v. FREED (2021)

MEMORANDUM **

William J. Myers, Jr. appeals pro se from the district court's order denying his motion to set aside the judgment. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of a discretion. United States v. Estate of Stonehill, 660 F.3d 415, 443 (9th Cir. 2011). We affirm.

The district court did not abuse its discretion by denying Myers's motion for relief under Federal Rule of Civil Procedure 60(d)(3) because Myers failed to establish by clear and convincing evidence a fraud on the court. See id. at 443-45 (under Rule 60(d)(3) a party must establish fraud on the court by clear and convincing evidence).

Defendant's request for appellate attorney's fees and costs, set forth in the answering brief, is denied without prejudice. See Fed. R. App. P. 38 (requiring a separate motion for fees and costs); Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 815, 828 (9th Cir. 2009) (a request made in an appellate brief does not satisfy Rule 38).

All pending motions (Docket Entry Nos. 17, 18, and 22) are denied.

AFFIRMED.