Joseph Dong v. Ben Carson

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 2019
• Docket: 17-55603
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSEPH DONG, No. 17-55603

Plaintiff-Appellant, D.C. No. 2:15-cv-03539-GHK-AJW v.

BEN CARSON, Secretary, United States MEMORANDUM* Department of Housing and Urban Development, a federal agency; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding

Submitted October 12, 2018** Pasadena, California

Before: SCHROEDER and NGUYEN, Circuit Judges, and SIMON,*** District Judge.

Joseph Dong appeals the district court’s denial of relief under Federal Rule

* 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). *** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. of Civil Procedure 60(b)(1) and (b)(6). We have jurisdiction under 28 U.S.C.

§ 1291 and affirm.

First, Rule 60(b)(1) allows courts to “relieve a party or a party’s legal

representative from a final judgment on the basis of mistake, inadvertence,

surprise, or excusable neglect.” Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223

(9th Cir. 2000). When determining whether to grant relief for late filings or

failures to appear under Rule 60(b)(1) for excusable neglect, we apply the test set

forth in Pioneer and Briones. See Pioneer Investment Services Co. v. Brunswick

Assocs. Ltd. P’ship, 507 U.S. 380, 394 (1993); Briones v. Riviera Hotel & Casino,

116 F.3d 379, 381–82 (9th Cir. 1997). We evaluate four factors: “(1) the danger of

prejudice to the opposing party; (2) the length of the delay and its potential impact

on the proceedings; (3) the reason for the delay; and (4) whether the movant acted

in good faith.” Bateman, 231 F.3d 1223–24 (citing Pioneer, 507 U.S. at 395).

Ignorance and carelessness do not quality for Rule 60(b)(1) relief. See Engleson v.

Burlington N. R.R. Co., 972 F.2d 1038, 1043 (1992).

Here, the district court properly applied the four Pioneer-Briones factors

when Dong’s counsel failed to oppose a motion to dismiss. The district court

concluded that the first factor weighed slightly against relief because six years had

passed since the alleged discriminatory events. As to the second factor, the one-

year delay before Dong filed the Rule 60 motion weighed heavily against relief.

2 The district court also thoroughly discussed the third factor, concluding that the

delay in filing the Rule 60 motion and Dong’s counsel’s ability to do other work

during that time period weighed against relief. As to the final factor, Dong

appeared to act in good faith which weighed slightly in his favor, but not enough to

overcome the other factors.

Rule 60(b)(6) is a catch-all rule sparingly allowing for relief from a final

judgment in “extraordinary circumstances” to prevent “manifest injustice.” See

Community Dental Servs. v. Tani, 282 F.3d 1164, 1171–72 (9th Cir. 2002); United

States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (1993). Here, Dong

has failed to show extraordinary circumstances. Therefore, the district court did

not abuse its discretion in denying the Rule 60 motion.1

AFFIRMED.

1 We do not reach the merits of the underlying judgment. See Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991) (“An appeal from a denial of a Rule 60(b) motion brings up only the denial of the motion for review, not the merits of the underlying judgment”).