Empire Fire and Marine Insurance Company v. Rodriguez

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 15, 2025
• Docket: 24-1419
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 15 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EMPIRE FIRE AND MARINE No. 24-1419 INSURANCE COMPANY, D.C. No. 2:21-cv-00289-JCM-EJY Plaintiff - Appellee,

v. MEMORANDUM*

JOSE A. RODRIGUEZ; JACOB RAMIREZ; JOSE LUIS TELLO-ROBLES,

Defendants - Appellants,

and

NICOLE ELYSE BROOKS,

Defendant.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted January 13, 2025** San Francisco, California

Before: H.A. THOMAS, MENDOZA, and JOHNSTONE, 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). Defendants-Appellants Jose A. Rodriguez, Jacob Ramirez, and Jose Luis

Tello-Robles appeal the district court’s entry of default judgment against defendant

Nicole Brooks (“Brooks”) and denial of their motion for reconsideration of that

judgment. We have jurisdiction under 28 U.S.C. § 1291. We “review the grant of a

default judgment for abuse of discretion.” NewGen, LLC v. Safe Cig, LLC, 840

F.3d 606, 616 (9th Cir. 2016) (citing Alan Neuman Prods., Inc. v. Albright, 862

F.3d 1388, 1391 (9th Cir. 1988)). “We review a denial of a motion for

reconsideration . . . for abuse of discretion.” Palm v. L.A. Dep’t of Water & Power,

889 F.3d 1081, 1085 (9th Cir. 2018) (citing Smith v. Pac. Props. & Dev. Corp.,

358 F.3d 1097, 1100 (9th Cir. 2004)). We affirm.

1. The district court properly considered the applicable Eitel factors in its

decision to enter default judgment against Brooks, and did not abuse its discretion

in entering that default. See Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir.

1986). The district court appropriately noted (1) Empire Fire and Marine Insurance

Co.’s (“Empire”) multiple efforts at serving Brooks; (2) Brooks’ repeated evasion

of service; and that (3) Empire would be prejudiced if default judgment were not

entered. On appeal, Defendants-Appellants argue that Brooks’ evasion of service

may have been due to excusable neglect. But this argument is forfeited as they

never raised any objection to Empire’s motion for leave to serve Brooks by

publication. See Raich v. Gonzales, 500 F.3d 850, 868 (9th Cir. 2007) (arguments

2 24-1419 not raised below will not be considered).

2. The district court did not abuse its discretion in denying Defendants-

Appellants’ motion for reconsideration. Reconsideration is appropriate in three

circumstances: (1) “newly discovered evidence;” (2) “clear error” or “manifestly

unjust” initial decision; and (3) an “intervening change in controlling law.” School

Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). None of those

circumstances apply here. Nor did the district court evidently err in its observation

that Defendants-Appellants’ repeat filing of such motions without leave of court

and in violation of the local rules bordered on “frivolous and abusive.”

AFFIRMED.

3 24-1419