NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 28 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
RAYMOND VALDEZ, individually and as No. 23-2825 the Successor in Interest to the Estate of D.C. No. Beatrice Esther Valdez, 2:23-cv-03857-JFW-PVC Plaintiff - Appellant, MEMORANDUM*
v.
UNITED AIRLINES HOLDINGS, INC., a Delaware corporation; HAS DEVELOPMENT CORPORATION, a Texas corporation; DOES, 1 to 10, inclusive,
Defendants - Appellees.
Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding
Argued and Submitted November 5, 2024 Pasadena, California
Before: SCHROEDER, CALLAHAN, and WALLACH, Circuit Judges.** Concurrence by Judge WALLACH.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Evan J. Wallach, United States Circuit Judge for the Federal Circuit, sitting by designation. Raymond Valdez (“Valdez”) appeals the district court’s Order Denying
Relief under Federal Rule of Civil Procedure (“Rule”) 60(b)(1) and (6) from its
prior dismissal of his Complaint against Defendants (collectively, “United”) as
time-barred. We review a district court’s Rule 60(b) ruling for abuse of discretion
and review any underlying questions of law de novo. Sridej v. Blinken,
108 F.4th 1088, 1090 (9th Cir. 2024). On appeal, we are limited to reviewing only
the new grounds raised in the motion for relief itself and cannot reach the merits of
the underlying judgment. Lynch v. Blodgett, 999 F.2d 401, 403 n.1 (9th Cir. 1993).
We have jurisdiction under 28 U.S.C. § 1291 and we affirm. 1
Valdez filed his wrongful death Complaint against United in state court two
years and one day after his mother died. This was one day after the two-year
statute of limitations ran.2 United removed the case to federal court and moved to
dismiss the case as time-barred. In opposition to United’s motion to dismiss,
Valdez did not dispute the two-year statute of limitations period or the fact that he
filed his action two years and one day after his mother died. Instead, Valdez relied
1 Because the parties are familiar with the facts, we do not fully recount them. 2 There is no dispute the length of the statute of limitations is two years. Although Valdez once argued that California law applies and now argues that Texas law applies, under both states’ laws, the applicable statute of limitations is two years. See Cal. Civ. Proc. Code § 335.1; Tex. Civ. Prac. & Rem. Code § 16.003(b).
2 23-2825 on an alternative method (that Valdez now admits was mistaken) for computation
of time to argue that his Complaint was timely. 3 The district court disagreed with
Valdez’s alternative method and dismissed the underlying action as time-barred.
Valdez moved under Rule 60(b) for relief from the dismissal order. Valdez
argued that the statute of limitations did not begin to run until a couple months
later than previously thought because of the “discovery rule,” which Valdez’s
counsel mistakenly failed to consider in opposing the dismissal. Valdez also
argued his Complaint was timely under any two-year calculation method because
he had, in fact, filed it exactly two years to the day of his mother’s death, but the
state court made a clerical mistake, timestamping his Complaint one day later than
the state court had received it. The district court did not accept Valdez’s
arguments and denied relief. Valdez v. United Airlines, Inc., No. 23-cv-3857,
2023 WL 7029648, at *2 (C.D. Cal. Sept. 22, 2023).
We find that the district court did not abuse its discretion in denying
Valdez’s motion for relief under Rule 60(b)(1). Rule 60(b)(1) delineates four
reasons to relieve a party from a final order: “mistake, inadvertence, surprise, or
excusable neglect.” Fed. R. Civ. P. 60(b)(1). Valdez requests relief under Rule
3 Specifically, Valdez miscalculated by stating: “the triggering event date was the death of Mr. Valdez’s mother on October 20, 2020, . . . we add 730 days, which means that Mr. Valdez had until October 21, 2022 to file his complaint. He did so.”
3 23-2825 60(b)(1) for alleged “mistake.” “Motions for relief from judgment under Rule
60(b)(1) must . . . satisfy the four-factor test the Supreme Court established in
Pioneer.” Washington v. Ryan, 833 F.3d 1087, 1098 (9th Cir. 2016) (en banc).
“The test considers: (1) the danger of prejudice to the non-moving party; (2) the
length of the filing delay and its potential impact on the proceedings; (3) the reason
for the filing delay; and (4) whether the moving party acted in good faith.” Id.
(citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395
(1993)).
The district court properly concluded that Valdez’s counsels’ mistakes in
miscalculating the statute of limitations were not “mistakes” deserving relief under
Rule 60(b)(1). Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1101 (9th Cir.
2006) (“Rule 60(b)(1) is not intended to remedy the effects of a litigation decision
that a party later comes to regret through subsequently-gained knowledge that
corrects the erroneous legal advice of counsel.”). The district court did not abuse
its discretion in concluding Valdez’s counsel’s alleged “mistake” of miscalculating
the statute of limitations was obvious and plainly available to Valdez. Valdez’s
argument was merely an improper attempt to use Rule 60(b)(1) to re-argue the
motion to dismiss. Accordingly, the district court properly concluded that undue
delay in the resolution of the action weighed against relief.
4 23-2825 Additionally, we find no abuse of discretion in the district court’s denial of
the motion for relief despite Valdez’s new contention that his Complaint was
improperly date-stamped by the state court. The district court did not abuse its
discretion in finding this new contention lacked credibility in light of his earlier
statement that the Complaint was filed on October 21, 2022, or in making the
essentially factual determination that the exhibit submitted by Valdez was
incomplete, unauthenticated, and non-probative.4 Valdez initiated this action by
filing a complaint in state court, yet he does not appear to have made any
reasonable effort to verify the filing date until after the district court’s adverse
ruling based on the statute of limitations. See Washington, 833 F.3d at 1098
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 28 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
RAYMOND VALDEZ, individually and as No. 23-2825 the Successor in Interest to the Estate of D.C. No. Beatrice Esther Valdez, 2:23-cv-03857-JFW-PVC Plaintiff - Appellant, MEMORANDUM*
v.
UNITED AIRLINES HOLDINGS, INC., a Delaware corporation; HAS DEVELOPMENT CORPORATION, a Texas corporation; DOES, 1 to 10, inclusive,
Defendants - Appellees.
Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding
Argued and Submitted November 5, 2024 Pasadena, California
Before: SCHROEDER, CALLAHAN, and WALLACH, Circuit Judges.** Concurrence by Judge WALLACH.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Evan J. Wallach, United States Circuit Judge for the Federal Circuit, sitting by designation. Raymond Valdez (“Valdez”) appeals the district court’s Order Denying
Relief under Federal Rule of Civil Procedure (“Rule”) 60(b)(1) and (6) from its
prior dismissal of his Complaint against Defendants (collectively, “United”) as
time-barred. We review a district court’s Rule 60(b) ruling for abuse of discretion
and review any underlying questions of law de novo. Sridej v. Blinken,
108 F.4th 1088, 1090 (9th Cir. 2024). On appeal, we are limited to reviewing only
the new grounds raised in the motion for relief itself and cannot reach the merits of
the underlying judgment. Lynch v. Blodgett, 999 F.2d 401, 403 n.1 (9th Cir. 1993).
We have jurisdiction under 28 U.S.C. § 1291 and we affirm. 1
Valdez filed his wrongful death Complaint against United in state court two
years and one day after his mother died. This was one day after the two-year
statute of limitations ran.2 United removed the case to federal court and moved to
dismiss the case as time-barred. In opposition to United’s motion to dismiss,
Valdez did not dispute the two-year statute of limitations period or the fact that he
filed his action two years and one day after his mother died. Instead, Valdez relied
1 Because the parties are familiar with the facts, we do not fully recount them. 2 There is no dispute the length of the statute of limitations is two years. Although Valdez once argued that California law applies and now argues that Texas law applies, under both states’ laws, the applicable statute of limitations is two years. See Cal. Civ. Proc. Code § 335.1; Tex. Civ. Prac. & Rem. Code § 16.003(b).
2 23-2825 on an alternative method (that Valdez now admits was mistaken) for computation
of time to argue that his Complaint was timely. 3 The district court disagreed with
Valdez’s alternative method and dismissed the underlying action as time-barred.
Valdez moved under Rule 60(b) for relief from the dismissal order. Valdez
argued that the statute of limitations did not begin to run until a couple months
later than previously thought because of the “discovery rule,” which Valdez’s
counsel mistakenly failed to consider in opposing the dismissal. Valdez also
argued his Complaint was timely under any two-year calculation method because
he had, in fact, filed it exactly two years to the day of his mother’s death, but the
state court made a clerical mistake, timestamping his Complaint one day later than
the state court had received it. The district court did not accept Valdez’s
arguments and denied relief. Valdez v. United Airlines, Inc., No. 23-cv-3857,
2023 WL 7029648, at *2 (C.D. Cal. Sept. 22, 2023).
We find that the district court did not abuse its discretion in denying
Valdez’s motion for relief under Rule 60(b)(1). Rule 60(b)(1) delineates four
reasons to relieve a party from a final order: “mistake, inadvertence, surprise, or
excusable neglect.” Fed. R. Civ. P. 60(b)(1). Valdez requests relief under Rule
3 Specifically, Valdez miscalculated by stating: “the triggering event date was the death of Mr. Valdez’s mother on October 20, 2020, . . . we add 730 days, which means that Mr. Valdez had until October 21, 2022 to file his complaint. He did so.”
3 23-2825 60(b)(1) for alleged “mistake.” “Motions for relief from judgment under Rule
60(b)(1) must . . . satisfy the four-factor test the Supreme Court established in
Pioneer.” Washington v. Ryan, 833 F.3d 1087, 1098 (9th Cir. 2016) (en banc).
“The test considers: (1) the danger of prejudice to the non-moving party; (2) the
length of the filing delay and its potential impact on the proceedings; (3) the reason
for the filing delay; and (4) whether the moving party acted in good faith.” Id.
(citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395
(1993)).
The district court properly concluded that Valdez’s counsels’ mistakes in
miscalculating the statute of limitations were not “mistakes” deserving relief under
Rule 60(b)(1). Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1101 (9th Cir.
2006) (“Rule 60(b)(1) is not intended to remedy the effects of a litigation decision
that a party later comes to regret through subsequently-gained knowledge that
corrects the erroneous legal advice of counsel.”). The district court did not abuse
its discretion in concluding Valdez’s counsel’s alleged “mistake” of miscalculating
the statute of limitations was obvious and plainly available to Valdez. Valdez’s
argument was merely an improper attempt to use Rule 60(b)(1) to re-argue the
motion to dismiss. Accordingly, the district court properly concluded that undue
delay in the resolution of the action weighed against relief.
4 23-2825 Additionally, we find no abuse of discretion in the district court’s denial of
the motion for relief despite Valdez’s new contention that his Complaint was
improperly date-stamped by the state court. The district court did not abuse its
discretion in finding this new contention lacked credibility in light of his earlier
statement that the Complaint was filed on October 21, 2022, or in making the
essentially factual determination that the exhibit submitted by Valdez was
incomplete, unauthenticated, and non-probative.4 Valdez initiated this action by
filing a complaint in state court, yet he does not appear to have made any
reasonable effort to verify the filing date until after the district court’s adverse
ruling based on the statute of limitations. See Washington, 833 F.3d at 1098
4 Not until his motion for relief did Valdez offer the alleged email exhibit discussing when an “order” was “submitted via e-filing.” The alleged email post- dates Valdez’s Complaint, and it was neither incorporated into Valdez’s Complaint nor attached to Valdez’s opposition to the motion to dismiss. “In reviewing the sufficiency of a complaint, we limit ourselves to the complaint itself and its attached exhibits, documents incorporated by reference, and matters properly subject to judicial notice.” In re NVIDIA Corp. Sec. Litig., 768 F.3d 1046, 1051 (9th Cir. 2014). “[W]e ‘need not . . . accept as true allegations that contradict matters properly subject to judicial notice or by exhibit.’” Produce Pay, Inc. v. Izguerra Produce, Inc., 39 F.4th 1158, 1161 (9th Cir. 2022) (quoting Gonzalez v. Planned Parenthood of L.A., 759 F.3d 1112, 1115 (9th Cir. 2014)). None of the characteristics we have described as sufficient for incorporation by reference into a complaint are present here, such as the complaint necessarily relying upon a document’s contents, the document’s authenticity not being in question, and there being no disputed issues as to the document’s relevance. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010).
5 23-2825 (explaining the length and reason for delay in seeking relief are factors to consider
under Rule 60(b)(1)).
Rule 60(b)(6) relief should be granted when “extraordinary circumstances
prevented a litigant from seeking earlier, more timely relief.” United States v.
Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). Valdez failed
to provide any indication that the alleged mistakes could not have been raised
earlier or establish “any other reason that justifies relief” under Rule 60(b)(6).
Finally, we reject Valdez’s alternative arguments that he deserves relief
given “the strong policy underlying the Federal Rules of Civil Procedure favoring
decisions on the merits,” and the “interests of justice.” Valdez received multiple
opportunities to make his case. We affirm because his claim is time-barred under
the statute of limitations. 5
AFFIRMED.
5 United argued Valdez’s counsel should “pay United’s reasonable attorneys’ fees incurred in responding to this appeal.” The majority declines to award fees.
6 23-2825 FILED Valdez v. United Airlines Holdings, Inc., et al., No. 23-2825 MAY 28 2025 MOLLY C. DWYER, CLERK WALLACH, Circuit Judge, concurring. U.S. COURT OF APPEALS
I concur with the majority but also would address United’s request for
attorney’s fees (see footnote 5 of the memorandum disposition) by ordering
Valdez’s counsel to show cause in writing why we should not impose sanctions
pursuant to 28 U.S.C. § 1927 and this Court’s inherent power. See Blixseth v.
Yellowstone Mountain Club, LLC, 796 F.3d 1004, 1007 (9th Cir. 2015) (noting that
§ 1927 sanctions “must be supported by a finding of subjective bad faith,” which
“is present when an attorney knowingly or recklessly raises a frivolous argument”
(citation omitted)); see also Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991)
(noting there is no authority that “warrants a conclusion that a federal court may
not, as a matter of law, resort to its inherent power to impose attorney’s fees as a
sanction for bad-faith conduct”).
Since Valdez’s Complaint was dismissed as time-barred, Valdez’s counsel
have pursued a vexatious proceeding for relief from that dismissal in a shifting
story filled with contradictions and disingenuous excuses. Valdez’s counsel’s
arguments are so frivolous and vexatious that they demonstrate bad faith.
For example, Valdez’s counsel contradicted themselves repeatedly on a
critical issue in this litigation: the date Valdez’s Complaint was filed. Valdez’s
counsel initially asserted that they filed Valdez’s Complaint in the state court on
1 23-2825 October 21, 2022. That was one day beyond the statute of limitations. Later
Valdez’s counsel proffered a fugitive document (allegedly an email) with a
declaration from Valdez’s counsel testifying “[t]he file stamp on the complaint is
incorrect,” and “[t]he [state court] clerk marked it filed on October 21, 2022, rather
than the date it was received on.” Based exclusively on that unauthenticated,
fugitive document and counsel’s declaration, Valdez’s counsel’s briefing on appeal
was premised explicitly on the state court’s clerical mistake in timestamping one
day late (asserting, in no uncertain terms, for example, the fugitive document
“confirms the attorney service did submit the complaint for filing to the [state
court] on October 20, 2022”; “the [state court] erred when it stamped his complaint
as filed”; and there was a “misfiling by the [state court].”). However, at oral
argument, Valdez’s counsel reverted and admitted that the Complaint was filed
with the state court on October 21, but attributed the one-day lateness to a third-
party attorney service, by stating “we submitted it to them for filing on October 20,
and as a licensed purveyor of these services for filing they agreed to file it the same
day, and that was our understanding of what had happened and we didn’t realize
that mistake until the motion for dismissal came about,” and “we are not placing
blame here other than on the service company.” This is contradictory on its face,
and probative of subjective bad faith.
2 23-2825 Valdez’s counsel offered disingenuous excuses, including for the first time
on appeal, counsel’s “erroneous leap year calculation” as another mistake counsel
made to miscalculate the statute of limitations. Valdez’s counsel’s alleged excuse
of filing late because of a leap year is nonsensical because if Valdez’s counsel had
believed there was an intervening extra February 29, the counsel would have filed
earlier in October, not later. In the event of a leap year, an extra day is added, and
a statute of limitations that is a multiple of 365 days starting on a given day of a
month would end earlier in the month. I believe, like the district court, these
excuses are “disingenuous and are nothing more than a failed attempt to
manufacture an excuse” to make additional arguments that were already available.
I recognize the district court denied United’s request for fees, but I do not
think that should control our decision. The district court did not consider, nor
could it have considered, that Valdez’s counsel has engaged in new conduct on
appeal that evinces bad faith. United has limited the sanctions it seeks to sanctions
for this appeal, or in the alternative, just an amount that would send a “strong
message,” which could even be awarded to the Court itself.
I would use the Court’s “inherent power to police itself” to prevent conduct
that “abuses the judicial process,” Chambers v. NASCO, 501 U.S. at 44–46, by
ordering the four attorneys associated with the law firm of DRE LAW, A.P.C.,
who have represented Valdez throughout the course of this litigation—Antonio
3 23-2825 Castillo (Cal. Bar No. 276891), Darren M. Richie (Cal. Bar No. 316116), Tory
Pankopf (Cal. Bar No 202581), and Kaeleen Kosmo (New York Bar No.
5756390)—to show cause in writing why this Court should not impose sanctions.
4 23-2825