Manna v. American Airlines, Inc.

63 F. App'x 352

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 15, 2003
• Docket: Nos. 01-17529, 02-16175
• Status: Published

Opinion

MEMORANDUM

**

August C. Manna appeals the district court’s orders denying his two Fed. R.Civ.P. 60(b) motions, to set aside the judgment in his employment discrimination action. In No. 01-17529, we have jurisdiction pursuant to 28 U.S.C. § 1291, we review for abuse of discretion, see Shalit v. Coppe, 182 F.3d 1124, 1127 (9th Cir.1999), and we affirm. In No. 02-16175, we lack jurisdiction and dismiss.

The district court did not abuse its discretion by denying relief from judgment under Rule 60(a), because summary judgment was not the product of a clerical mistake or error. See Fed.R.Civ.P. 60(a).

Moreover, Manna’s unjustified failure to file an opposition in the four-month period between the motion for summary judgment and the order granting summary judgment did not warrant relief under Fed.R.Civ.P. 60(b)(1) on the basis of mistake, inadvertence or excusable neglect. See Speiser, Krause & Madole P.C. v. Ortiz, 271 F.3d 884, 887 (9th Cir.2001); see also Jacobsen v. Filler, 790 F.2d 1362, 1364-67 (9th Cir.1986) (rejecting pro se litigant’s argument that district court had a duty to advise him of measures he should take to oppose defendants’ summary judgment motion).

The district court properly denied relief under Fed.R.Civ.P. 60(b)(3) because Manna faked to produce clear and convincing evidence that opposing counsel committed fraud, misrepresentation, or other misconduct that prevented Manna from opposing summary judgment. See De Saracho v. Custom Food Machinery, Inc., 206 F.3d 874, 880 (9th Cir.2000).

Because all of the bases for Manna’s motion for reconsideration are covered by other subsections of Rule 60(b), Rule 60(b)(6) is inapplicable. See United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1050 (9th Cir.1993).

We do not consider Manna’s contentions regarding the underlying summary judgment, because Manna did not file a timely notice of appeal from that order. See Maraziti v. Thorpe, 52 F.3d 252, 254 (9th Cir.1995); see also Fed. R.App. P. 3(c)(1)(B), 4(a)(4)(F).

The district court’s refusal to consider the merits of Manna’s second motion for reconsideration for want of jurisdiction is not a final, appealable order. See Defenders of Wildlife v. Bernal, 204 F.3d 920, 930 (9th Cir.2000). Accordingly No. 02-16175 is dismissed.

No. 01-17529 is AFFIRMED; No. 02-16175 is DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.