GONSALEZ v. EMPLOYMENT DEVELOPMENT DEPARTMENT (2021)

United States Court of Appeals, Ninth Circuit.

Jose J. GONSALEZ, Plaintiff-Appellant, v. EMPLOYMENT DEVELOPMENT DEPARTMENT; et al., Defendants-Appellees.

No. 20-55255

Decided: February 23, 2021

Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges. Jose J. Gonsalez, Pro Se Anna Barsegyan, Deputy Attorney General, Lisa W. Chao, Brian David Wesley, I, Esquire, Deputy Assistant Attorney General, AGCA-Office of the California Attorney General, Los Angeles, CA, for Defendant-Appellee Employment Development Department Anna Barsegyan, Deputy Attorney General, Brian David Wesley, I, Esquire, Deputy Assistant Attorney General, AGCA-Office of the California Attorney General, Los Angeles, CA, for Defendants-Appellees Myra Ibarra, Gustavo Bedoya, Rex Abiva

MEMORANDUM **

Jose J. Gonsalez appeals pro se from the district court's post-judgment orders in his action alleging federal claims arising out of a state audit and tax assessment. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Sch. Dist. No. 1J Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). We affirm.

The district court did not abuse its discretion in denying Gonsalez's Fed. R. Civ. P. 60(b)(3) motions because Gonsalez failed to demonstrate any basis for relief. See Casey v. Albertson's Inc., 362 F.3d 1254, 1257, 1260 (9th Cir. 2004) (to prevail under Rule 60(b)(3), the “moving party must prove by clear and convincing evidence” that judgment was obtained through fraud, misrepresentation, or other misconduct that was not “discoverable by due diligence before or during the proceedings” (citation and internal quotation marks omitted)).

We do not consider Gonsalez's contentions regarding the underlying judgment because Gonsalez failed to file a timely notice of appeal as to that judgment. See Fed. R. App. P. 4(a)(1)(A) (notice of appeal must be filed within 30 days of judgment); Swimmer v. IRS, 811 F.2d 1343, 1344-45 (9th Cir. 1987) (second motion for reconsideration does not toll time to appeal underlying judgment), abrogated on other grounds by Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir. 1997).

We do not consider matters not specifically and distinctly raised and argued in the opening brief, including the district court's denial of Gonsalez's motion to stay, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.