C & W Gas & Fastfood Center v. Northgate Petroleum Co.

98 F. App'x 709

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 1, 2004
• Docket: No. 03-15394; D.C. No. CV-98-00534-FCD(DAD)
• Status: Published

Opinion

MEMORANDUM

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The district court did not err by construing the Appellants’ Federal Rule of Civil Procedure 55 motion as arising under Rule 60(b)(1), and denying it because it was filed well past the one-year limit for seeking such relief. Lyon v. Agusta S.P.A., 252 F.3d 1078, 1088 (9th Cir.2001) (stating that Rule 60(b)(1) motions “must be brought within one year of the judgment which is being attacked”).

For the first time on appeal, the Appellants now argue that the district court should have granted a form of relief that was neither pursued nor considered below. “We agree that [a litigant], whatever may be the strength of its present argument, cannot fairly urge as a ground for reversal a theory which it did not present while the case was before the trial court.” United States v. Waechter, 195 F.2d 963, 964 (9th Cir.1952); see also Alaska Airlines, Inc. v. United Airlines, Inc., 948 F.2d 536, 546 n. 15 (9th Cir.1991) (noting “that an appellate court will not reverse a district court on the basis of a theory that was not raised below”). To the extent that there is an exception to this rule, it does not apply because the availability of alternative relief does not involve a purely legal question. See Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (“The Court of Appeals may review the ruling [on a motion for relief from judgment] only for abuse of discretion....”).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.