Andrew Shalaby v. Newell Brands, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 23, 2024
• Docket: 22-55812
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 23 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANDREW W. SHALABY, Nos. 22-55309 22-55812 Plaintiff-Appellant, D.C. No. 3:11-cv-00068-AJB-DHB v.

NEWELL BRANDS, INC., on behalf of the MEMORANDUM* defendant formerly known as Bernzomatic, an unincorporated division of Irwin Industrial Tool Company, and Newell Operating Company,

Defendant-Appellee,

and

BERNZOMATIC, an unincorporated division of Irwin Industrial Tool Company; et al.,

Defendants.

Appeals from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Submitted January 17, 2024**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.

In this consolidated appeal, Andrew W. Shalaby, an attorney, appeals pro se

from several post-judgment orders in his diversity action. We have jurisdiction

under 28 U.S.C. § 1291. We affirm.

The district court properly denied Shalaby’s motion to terminate the pre-

filing order because Shalaby did not demonstrate a basis for such relief. See SEC

v. Coldicutt, 258 F.3d 939, 941-42 (9th Cir. 2001) (setting forth standard of review

and discussing conditions under which a district court may modify a court order

under Federal Rule of Civil Procedure 60(b)(5)); Luckett v. Panos, 73 Cal. Rptr. 3d

745, 750 (Ct. App. 2008) (discussing conditions under which a prefiling order may

be modified under California law). To the extent that Shalaby challenges the pre-

filing review order, a prior panel of this court affirmed the district court’s order in

No. 12-56415, and we will not reconsider that decision. See Martinson v. Michael

(In re Michael), 163 F.3d 526, 529 (9th Cir. 1998) (explaining that, under the law

of the case, a panel generally will not reconsider issues decided by another panel in

a prior appeal in the same case).

The district court properly denied Shalaby’s motion under Federal Rules of

Civil Procedure 60(b)(4) and 60(b)(6) to set aside the district court’s order granting

defendants’ motion for contempt and sanctions because Shalaby failed to establish

that the judgment was void or that extraordinary circumstances otherwise justified

2 22-55309 & 22-55812 relief. See United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010)

(explaining that “Rule 60(b)(4) applies only in the rare instance where a judgment

is premised either on a certain type of jurisdictional error or on a violation of due

process that deprives a party of notice or the opportunity to be heard” (citations

omitted)); Henson v. Fid. Nat’l Fin., Inc., 943 F.3d 434, 443 (9th Cir. 2019)

(explaining that this court reviews for an abuse of discretion the denial of a Rule

60(b)(6) motion and that a movant must show “extraordinary circumstances” to

justify relief under this clause); United States v. $277,000.00 U.S. Currency, 69

F.3d 1491, 1493 (9th Cir. 1995) (explaining that this court reviews de novo the

denial of a Rule 60(b)(4) motion).

The district court did not abuse its discretion by denying Shalaby’s motion

for leave to file a declaratory action because the proposed complaint was within the

scope of the district court’s pre-filing review order. See In re Fillbach, 223 F.3d

1089, 1090 (9th Cir. 2000) (standard of review); Weissman v. Quail Lodge, Inc.,

179 F.3d 1194, 1197 (9th Cir. 1999) (“District courts have the inherent power to

file restrictive pre-filing orders against vexatious litigants with abusive and lengthy

histories of litigation.” (citation omitted)).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, 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).

3 22-55309 & 22-55812 All pending motions are denied.

AFFIRMED.

4 22-55309 & 22-55812