West American Insurance Company v. Justin Hernandez , 473 F. App'x 574 ( 2012 )


Menu:
  •                                                                            FILED
    NOT FOR PUBLICATION                             MAY 14 2012
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    WEST AMERICAN INSURANCE                          No. 11-35278
    COMPANY, an Ohio corporation,
    D.C. No. 6:07-cv-01447-AA
    Plaintiff - Appellant,
    v.                                             MEMORANDUM *
    JUSTIN L. HERNANDEZ and DANIELA
    A. HERNANDEZ,
    Defendants - Appellees.
    Appeal from the United States District Court
    for the District of Oregon
    Ann L. Aiken, Chief District Judge, Presiding
    Submitted May 10, 2012 **
    Portland, Oregon
    Before: KOZINSKI, Chief Judge, TALLMAN and IKUTA, Circuit Judges.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    The district court did not abuse its discretion in denying West American
    Insurance Company’s motions under Rules 60(b), 62, and 67 of the Federal Rules
    of Civil Procedure. West American’s motion to resolve a dispute regarding its
    entitlement to the $170,000 judgment under the mortgage clause sought relief that
    was unavailable under Rule 60(b)(6) because it rested on a claim that was not
    litigated as part of the underlying judgment. See Delay v. Gordon, 
    475 F.3d 1039
    ,
    1044–46 (9th Cir. 2007); see also United States v. $119,980, 
    680 F.2d 106
    , 107–08
    (11th Cir. 1982). West American did not appeal the district court’s prior denials of
    its motion to adjudicate that dispute, and Rule 60(b) is not available for
    adjudication of claims not adjudicated in the underlying order or judgment. See
    Delay, 475 F.3d at 1046–47. Nor was relief available under Rule 60(b)(5): The
    judgment had not “been satisfied, released or discharged,” and circumstances had
    not changed since the judgment was entered such that “applying it prospectively
    [was] no longer equitable.” Fed. R. Civ. P. 60(b)(5).
    West American’s motions under Rules 62 and 67 became moot when the
    district court decided its Rule 60(b) motion.
    AFFIRMED.
    2
    

Document Info

Docket Number: 11-35278

Citation Numbers: 473 F. App'x 574

Judges: Kozinski, Tallman, Ikuta

Filed Date: 5/14/2012

Precedential Status: Non-Precedential

Modified Date: 10/19/2024