NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRANDON APELA AFOA, an individual, No. 19-35626
Plaintiff-Appellant, D.C. No. 2:11-cv-00028-JCC
v. MEMORANDUM* CHINA AIRLINES, LTD., a foreign corporation; et al.,
Defendants-Appellees,
and
JOHN BEAN TECHNOLOGIES CORP., DBA JBT Corporation, an Illinois corporation; et al.,
Defendants.
Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding
Submitted June 4, 2020** Seattle, Washington
Before: GOULD, BEA, and MURGUIA, Circuit Judges.
* 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). Brandon Afoa appeals the district court’s denial of his motion to vacate the
court’s final judgment. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
Because the parties are familiar with the facts and procedural history of this
case, we recite only those facts necessary to decide this appeal. Afoa was severely
injured while driving a luggage vehicle for a cargo company at Seattle Tacoma
Airport. He brought two separate actions in state court for failure to provide a safe
work environment under Washington state common law and the Washington
Industrial Safety and Health Act of 1973 (“WISHA”)—one against the Port of
Seattle (the “Port”) and one against four airlines, China Airlines, Hawaiian
Airlines, EVA Airways, and British Airways (the “Airlines”).
The suit against the Airlines—the instant case—was removed to federal
court. The district court dismissed Afoa’s claims against EVA and British Airways
on the pleadings for failure to state a claim, granted summary judgment to China
and Hawaiian Airlines, and rendered a final judgment against Afoa.
Subsequently, the trial court in the state case against the Port allowed the
Port to amend its answer to add an “empty chair” defense, whereby the Port could
introduce evidence at trial that the Airlines were at least partially at fault for Afoa’s
injury. Following a five-week trial, a jury awarded Afoa $40 million in damages,
concluding that the Port was 25% liable, each airline was 18.7% liable, and Afoa
2 was 0.2% liable for his injuries. Because the Airlines were not part of the state
action, the court entered judgment only against the Port for $10 million.
After the Port satisfied the judgment in the state action, Afoa filed a motion
in the instant case pursuant to Federal Rule of Civil Procedure 60(b)(6), asking the
district court to vacate its judgment in light of the inconsistent outcomes in the
state and federal proceedings. The district court denied the motion.
We review the denial of a Rule 60(b) motion for abuse of discretion.
Harvest v. Castro, 531 F.3d 737, 741 (9th Cir. 2008).
Rule 60(b)(6) provides that, on motion, “the court may relieve a party or its
legal representative from a final judgment, order, or proceeding for . . . any other
reason [in addition to those categories specified in Rules 60(b)(1)–(5)] that justifies
relief.” Fed. R. Civ. P. 60(b)(6). A party moving for relief under Rule 60(b)(6)
“must demonstrate both injury and circumstances beyond his control that
prevented him from proceeding with . . . the action in a proper fashion.” Latshaw
v. Trainer Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 2006) (quoting Cmty.
Dental Srvs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002)). We have repeatedly
cautioned that Rule 60(b)(6) should be “‘used sparingly as an equitable remedy to
prevent manifest injustice’ and ‘is to be utilized only where extraordinary
circumstances prevented a party from taking timely action to prevent or correct an
erroneous judgment.’” Id. (quoting United States v. Washington, 394 F.3d 1152,
3 1157 (9th Cir. 2005)); see also United States v. Alpine Land & Reservoir Co., 984
F.2d 1047, 1049 (9th Cir. 1993).
1. Afoa first argues that we should vacate the district court’s judgment in
favor of the Airlines because he received substantially disparate outcomes in state
and federal court. We have unequivocally held that “Rule 60(b) is not intended to
remedy the effects of a deliberate and independent litigation decision that a party
later comes to regret through second thoughts or subsequently-gained
knowledge[.]” Latshaw, 452 F.3d at 1099. Here, Afoa made strategic litigation
decisions that inevitably led to disparate outcomes in state and federal court: He
filed two separate actions against the Airlines and the Port, and he chose not to
present any evidence in support of his claims against the Airlines in federal court,
representing in this federal proceeding that he was “certain that Hawaiian Airlines,
China Air, Eva Air, and British Air are not responsible for the loss, that the Port of
Seattle is and always has been responsible for the loss, and [he] therefore does not
oppose the dismissal of claims against Hawaiian Airlines.” Afoa’s litigation
strategy to drop the claims against the Airlines in federal court backfired when the
trial court in the state proceeding allowed the Port to assert the “empty chair”
defense and the jury found the Airlines were mostly liable for Afoa’s injuries. But,
as this Court held in Latshaw, this type of “litigation decision” that Afoa has “later
come[] to regret” is not reversable through a Rule 60(b)(6) motion. 452 F.3d at
4 1099.
Moreover, rather than moving for reconsideration or appealing the district
court’s orders dismissing his claims against the Airlines, Afoa purposely waited
until the jury determined that the Port was not entirely liable for his injuries in the
state action before he asked the district court to vacate its judgment. The Supreme
Court has cautioned that granting a Rule 60(b)(6) motion is not appropriate where
a petitioner makes a “calculated and deliberate” choice not to appeal the district
court’s allegedly erroneous judgment. Ackermann v. United States, 340 U.S. 193,
198 (1950); see also Title v. United States, 263 F.2d 28, 31 (9th Cir. 1959) (“Rule
60(b) was not intended to provide relief for error on the part of the court or to
afford a substitute for appeal.”). Accordingly, the district court did not abuse its
discretion in denying Afoa’s Rule 60(b)(6) motion.
2.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRANDON APELA AFOA, an individual, No. 19-35626
Plaintiff-Appellant, D.C. No. 2:11-cv-00028-JCC
v. MEMORANDUM* CHINA AIRLINES, LTD., a foreign corporation; et al.,
Defendants-Appellees,
and
JOHN BEAN TECHNOLOGIES CORP., DBA JBT Corporation, an Illinois corporation; et al.,
Defendants.
Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding
Submitted June 4, 2020** Seattle, Washington
Before: GOULD, BEA, and MURGUIA, Circuit Judges.
* 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). Brandon Afoa appeals the district court’s denial of his motion to vacate the
court’s final judgment. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
Because the parties are familiar with the facts and procedural history of this
case, we recite only those facts necessary to decide this appeal. Afoa was severely
injured while driving a luggage vehicle for a cargo company at Seattle Tacoma
Airport. He brought two separate actions in state court for failure to provide a safe
work environment under Washington state common law and the Washington
Industrial Safety and Health Act of 1973 (“WISHA”)—one against the Port of
Seattle (the “Port”) and one against four airlines, China Airlines, Hawaiian
Airlines, EVA Airways, and British Airways (the “Airlines”).
The suit against the Airlines—the instant case—was removed to federal
court. The district court dismissed Afoa’s claims against EVA and British Airways
on the pleadings for failure to state a claim, granted summary judgment to China
and Hawaiian Airlines, and rendered a final judgment against Afoa.
Subsequently, the trial court in the state case against the Port allowed the
Port to amend its answer to add an “empty chair” defense, whereby the Port could
introduce evidence at trial that the Airlines were at least partially at fault for Afoa’s
injury. Following a five-week trial, a jury awarded Afoa $40 million in damages,
concluding that the Port was 25% liable, each airline was 18.7% liable, and Afoa
2 was 0.2% liable for his injuries. Because the Airlines were not part of the state
action, the court entered judgment only against the Port for $10 million.
After the Port satisfied the judgment in the state action, Afoa filed a motion
in the instant case pursuant to Federal Rule of Civil Procedure 60(b)(6), asking the
district court to vacate its judgment in light of the inconsistent outcomes in the
state and federal proceedings. The district court denied the motion.
We review the denial of a Rule 60(b) motion for abuse of discretion.
Harvest v. Castro, 531 F.3d 737, 741 (9th Cir. 2008).
Rule 60(b)(6) provides that, on motion, “the court may relieve a party or its
legal representative from a final judgment, order, or proceeding for . . . any other
reason [in addition to those categories specified in Rules 60(b)(1)–(5)] that justifies
relief.” Fed. R. Civ. P. 60(b)(6). A party moving for relief under Rule 60(b)(6)
“must demonstrate both injury and circumstances beyond his control that
prevented him from proceeding with . . . the action in a proper fashion.” Latshaw
v. Trainer Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 2006) (quoting Cmty.
Dental Srvs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002)). We have repeatedly
cautioned that Rule 60(b)(6) should be “‘used sparingly as an equitable remedy to
prevent manifest injustice’ and ‘is to be utilized only where extraordinary
circumstances prevented a party from taking timely action to prevent or correct an
erroneous judgment.’” Id. (quoting United States v. Washington, 394 F.3d 1152,
3 1157 (9th Cir. 2005)); see also United States v. Alpine Land & Reservoir Co., 984
F.2d 1047, 1049 (9th Cir. 1993).
1. Afoa first argues that we should vacate the district court’s judgment in
favor of the Airlines because he received substantially disparate outcomes in state
and federal court. We have unequivocally held that “Rule 60(b) is not intended to
remedy the effects of a deliberate and independent litigation decision that a party
later comes to regret through second thoughts or subsequently-gained
knowledge[.]” Latshaw, 452 F.3d at 1099. Here, Afoa made strategic litigation
decisions that inevitably led to disparate outcomes in state and federal court: He
filed two separate actions against the Airlines and the Port, and he chose not to
present any evidence in support of his claims against the Airlines in federal court,
representing in this federal proceeding that he was “certain that Hawaiian Airlines,
China Air, Eva Air, and British Air are not responsible for the loss, that the Port of
Seattle is and always has been responsible for the loss, and [he] therefore does not
oppose the dismissal of claims against Hawaiian Airlines.” Afoa’s litigation
strategy to drop the claims against the Airlines in federal court backfired when the
trial court in the state proceeding allowed the Port to assert the “empty chair”
defense and the jury found the Airlines were mostly liable for Afoa’s injuries. But,
as this Court held in Latshaw, this type of “litigation decision” that Afoa has “later
come[] to regret” is not reversable through a Rule 60(b)(6) motion. 452 F.3d at
4 1099.
Moreover, rather than moving for reconsideration or appealing the district
court’s orders dismissing his claims against the Airlines, Afoa purposely waited
until the jury determined that the Port was not entirely liable for his injuries in the
state action before he asked the district court to vacate its judgment. The Supreme
Court has cautioned that granting a Rule 60(b)(6) motion is not appropriate where
a petitioner makes a “calculated and deliberate” choice not to appeal the district
court’s allegedly erroneous judgment. Ackermann v. United States, 340 U.S. 193,
198 (1950); see also Title v. United States, 263 F.2d 28, 31 (9th Cir. 1959) (“Rule
60(b) was not intended to provide relief for error on the part of the court or to
afford a substitute for appeal.”). Accordingly, the district court did not abuse its
discretion in denying Afoa’s Rule 60(b)(6) motion.
2. Afoa also argues that the Washington State Supreme Court’s decision in
Afoa v. Port of Seattle (“Afoa II”), 421 P.3d 903, 907 (Wash. 2018), constitutes a
change in controlling substantive law that warrants vacating the district court’s
judgment. But far from changing the law, the Afoa II decision reiterated the
longstanding rule articulated in prior Washington State Supreme Court cases that
“[i]n the context of the WISHA specific and common law duty to provide a safe
work site, control exists where ‘there is a retention of the right to direct the manner
in which the work is performed.’” Id. at 912 (first quoting Kamla v. Space Needle
5 Corp., 52 P.3d 472, 476 (Wash. 2002); and then citing Carabba v. Anacortes Sch.
Dist. No. 103, 435 P.2d 936, 947–48 (Wash. 1967)). This is exactly the legal rule
that the district court applied to dismiss Afoa’s claims against the Airlines. Indeed,
the Afoa II court attributed the disparate outcomes in state and federal court to Afoa’s
strategic litigation decisions, not to any difference in the applicable controlling law.
Id. at 913–915 (explaining that Afoa was unable to recover from the Airlines in state
court because he “initiated separate proceeding[s] [against them] and failed to ask
the jury to find the Port vicariously liable for the airlines’ fault by finding agency,”
and “the federal court’s summary judgment did not preclude the Port from making
its empty chair defense [in state court],” given that “the Port was not a party in the
federal suit”).
AFFIRMED.