Garcia v. Costco Wholesale Corporation

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 22, 2025
• Docket: 24-1485
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 22 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADOLFO GARCIA, Personal No. 24-1485 Representative/Successor-in-Interest, D.C. No. 2:23-cv-01727-MWF-MAR Plaintiff - Appellant, MEMORANDUM* v.

COSTCO WHOLESALE CORPORATION,

Defendant - Appellee,

and

JEN PELL, DOES, 1 to 50, Inclusive,

Defendants.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Submitted May 14, 2025** Pasadena, California

Before: IKUTA, R. NELSON, and LEE, 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). Apolonia Cortes appeals from the district court’s denial of her motion to set

aside the order of dismissal pursuant to Rule 60(b)(1) of the Federal Rules of Civil

Procedure (the Rule 60(b)(1) motion).1 We have jurisdiction under 28 U.S.C.

§ 1291. We affirm.

The district court did not abuse its discretion in denying Cortes’s Rule

60(b)(1) motion, see Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097,

1100 (9th Cir. 2006), as it properly applied the four factors set forth in Pioneer

Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S.

380, 395 (1993).

With respect to the first Pioneer factor, prejudice to the nonmovant, the

district court did not abuse its discretion in concluding that, given the loss of

evidence that had resulted from Cortes’s death, the prejudice to Costco Wholesale

Corporation (Costco) counseled against granting the Rule 60(b)(1) motion. The

district court reasonably rejected Cortes’s argument that Costco bore responsibility

for the loss of evidence because it postponed Cortes’s deposition until after the

parties’ conference pursuant to Rule 26(f) of the Federal Rules of Civil Procedure.

Although Cortes’s death prejudiced both parties, Pioneer does not require a

1 Cortes died in August 2023. Cortes’s son and personal representative, Adolfo Garcia, has been substituted as plaintiff-appellant in this case. Dkt. 35. 2 consideration of prejudice to the moving party. 507 U.S. at 395. Therefore, the

district court did not abuse its discretion in concluding that the first Pioneer factor

weighed against granting Cortes’s Rule 60(b)(1) motion.

Nor did the district court abuse its discretion in determining that the second

Pioneer factor, the length of delay and its impact on judicial proceedings, weighed

against granting Cortes’s Rule 60(b)(1) motion. Delays of similar duration may be

excusable. See Lemoge v. United States, 587 F.3d 1188, 1197 (9th Cir. 2009)

(concluding that a delay of “about seven months” was excusable). However,

whether a Rule 60(b)(1) motion was made within a reasonable time “depends upon

the facts of each case.” Id. at 1196. Here, the district court dismissed the case

without prejudice in May 2023, Cortes died in August 2023, and counsel filed its

Rule 60(b)(1) motion in January 2024. Given the loss of evidence that resulted

from Cortes’s death, the delay of nearly eight months after the district court

dismissed the case was significant.

Cortes concedes that the district court did not err in determining that the

third Pioneer factor, the reason for the delay, weighed against granting her Rule

60(b)(1) motion.

Last, the district court did not err in concluding that the final Pioneer factor,

good faith, counseled in favor of granting the motion.

3 Because three out of four Pioneer factors weighed against granting Cortes’s

Rule 60(b)(1) motion, the district court did not abuse its discretion in denying that

motion. Cf. Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224 (9th Cir. 2000)

(holding that a district court abuses its discretion when it fails to “conduct the

equitable analysis laid out in Pioneer”).

AFFIRMED.2

2 Costco’s motion for judicial notice (Dkt. 25) is DENIED. 4