Lashon Sales v. Debbie Asuncion

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 22, 2021
• Docket: 20-56145
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LASHON SALES, individually and as No. 20-56145 successor-in-interest to Decedent Cameron Wagner, D.C. No. 2:18-cv-03606-RGK-GJS Plaintiff-Appellant,

v. MEMORANDUM*

DEBBIE ASUNCION, Warden, California Department of Corrections, Los Angeles County; DOES, 1-50, inclusive, individually and in their official capacities,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Submitted October 20, 2021** Pasadena, California

Before: KLEINFELD, R. NELSON, and VANDYKE, Circuit Judges.

Six months after judgment in this case, appellant Lashon Sales filed a 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). 60(b) motion for relief from that judgment. Rule 60(b) allows the district court to

relieve a party from judgment when there is newly discovered evidence, changed

law, fraud, misconduct, mistake, or some other reason that justifies extraordinary

relief. Fed. R. Civ. P. 60(b). The district court denied the motion because appellant

failed to identify new facts, changed law, or any other reason judgment should be

altered under the demanding Rule 60(b) standard. That order, and only that order,

is now on appeal. We affirm.1

Appellant argues that we should use this appeal of a post-judgment order to

review the entire underlying case, including the district court’s rulings on summary

judgment. The result here might have been different if appellant timely appealed the

district court’s final judgment. See 28 U.S.C. § 2107(a); Fed. R. Civ. P. 60(b); Fed.

R. App. P. 3, 4(a)(1)(A), 4(a)(4)(A)(vi). But she did not do so, meaning we can only

review the district court’s order denying her Rule 60(b) motion. See Lal v.

California, 610 F.3d 518, 523–24 (9th Cir. 2010) (explaining the court lacked

jurisdiction to review an underlying dismissal order when a Rule 60 motion was filed

after the deadline to appeal); United States v. Sadler, 480 F.3d 932, 937 (9th Cir.

2007) (explaining that a timely notice of appeal is jurisdictional); Molloy v. Wilson,

878 F.2d 313, 315 (9th Cir. 1989) (“An appeal from a denial of a Rule 60(b) motion

1 The parties are familiar with the facts and procedural history of this case, so we recite only those facts necessary to decide this appeal.

2 brings up only the denial of the motion for review, not the merits of the underlying

judgment.”).

We review denial of a 60(b) motion to reconsider judgment for abuse of

discretion. Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1100 (9th Cir.

2006). “Under this standard, we can reverse only if a district court does not apply

the correct law, rests its decision on a clearly erroneous finding of material fact, or

applies the correct legal standard in a manner that results in an abuse of discretion.”

Id. (citation and quotation marks omitted).

Here, the district court properly identified Rule 60(b) and a corresponding

local rule and accurately stated that a motion for reconsideration could not be used

to re-litigate a lawsuit. Then, the district court applied the rule and analyzed

appellant’s requests for reconsideration of orders on multiple motions for leave to

amend and a motion for summary judgment, finding there had been no changes in

law or fact to justify relief under Rule 60(b). We cannot say the district court abused

its discretion here. See Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248

F.3d 892, 899 (9th Cir. 2001) (finding no abuse of discretion where a district court

denied a Rule 60(b) motion in which movants merely reiterated previously raised

arguments); Casey v. Albertson’s Inc., 362 F.3d 1254, 1261 (9th Cir. 2004) (“[T]his

is a clear attempt to relitigate the issue central to the merits of this case and the

3 district court’s summary judgment [order]. As the merits of a case are not before the

court on a Rule 60(b) motion, this claim fails as well.”).

Because our review is limited to the district court’s denial of appellant’s Rule

60(b) motion, we conclude that the district court did not abuse its considerable

discretion in denying relief. Appellant has not shown otherwise. We AFFIRM.