Christopher Martella v. Marine Cooks & Stewards Union, Seafarers International Union of North America, Afl-Cio

Ninth Circuit

Christopher Martella v. Marine Cooks & Stewards Union, Seafarers International Union of North America, Afl-Cio

448 F.2d 729, 15 Fed. R. Serv. 2d 863, 1971 U.S. App. LEXIS 8120

Court of Appeals for the Ninth Circuit·Decided September 13, 1971·No. 24579_1·Published·Cited by 98 cases

Opinion

PER CURIAM:

The district court, following a hearing, dismisáed this action for plaintiff’s failure to comply with several orders of the court relating to pretrial matters. These orders were based upon various of the Federal Rules of Civil Procedure and local court rules. Plaintiff did not appeal nor pursue any procedure to reinstate the cause until some five months after the dismissal when he filed a motion, ostensibly under Rule 60(b) (6) Fed.R.Civ.P., to be relieved of the judgment. The district court denied him relief, hence this appeal.

In order to bring himself within the limited area of Rule 60(b) (6) a petitioner is required to establish the existence of extraordinary circumstances which prevented or rendered him unable to prosecute an appeal. Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949); Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950). Plaintiff made no such showing.

Nor does the record reveal facts, or any fact, which would tend to show that plaintiff’s failure to seek review was due to “excusable neglect,” a ground for relief under Rule 60(b) (1). To the contrary, it discloses plaintiff’s entire lack of diligence and attention to the matter.

60(b) motions are addressed to the sound discretion of the district court. Title v. United States, 263 F.2d 28 (9th Cir. 1959). As indicated above, denial of plaintiff’s motion was well within that court’s discretion. The judgment is therefore

Affirmed.

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PER CURIAM:

The district court, following a hearing, dismisáed this action for plaintiff’s failure to comply with several orders of the court relating to pretrial matters. These orders were based upon various of the Federal Rules of Civil Procedure and local court rules. Plaintiff did not appeal nor pursue any procedure to reinstate the cause until some five months after the dismissal when he filed a motion, ostensibly under Rule 60(b) (6) Fed.R.Civ.P., to be relieved of the judgment. The district court denied him relief, hence this appeal.

In order to bring himself within the limited area of Rule 60(b) (6) a petitioner is required to establish the existence of extraordinary circumstances which prevented or rendered him unable to prosecute an appeal. Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949); Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950). Plaintiff made no such showing.

Nor does the record reveal facts, or any fact, which would tend to show that plaintiff’s failure to seek review was due to “excusable neglect,” a ground for relief under Rule 60(b) (1). To the contrary, it discloses plaintiff’s entire lack of diligence and attention to the matter.

60(b) motions are addressed to the sound discretion of the district court. Title v. United States, 263 F.2d 28 (9th Cir. 1959). As indicated above, denial of plaintiff’s motion was well within that court’s discretion. The judgment is therefore

Affirmed.

Christopher Martella v. Marine Cooks & Stewards Union, Seafarers International Union of North America, Afl-Cio, 448 F.2d 729, 15 Fed. R. Serv. 2d 863, 1971 U.S. App. LEXIS 8120 (9th Cir. 1971).

Pincite

448 F.2d 729 (Christopher Martella v. Marine Cooks & Stewards Union, Seafarers International Union of North America, Afl-Cio) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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