United States v. Michael Carey ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 1 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 10-16361
Plaintiff - Appellee, D.C. No. 2:05-cv-02176-MCE-
CMK
v.
MICHAEL CAREY and LEONE CAREY, MEMORANDUM *
Defendants - Appellants,
and
DOUGLAS J. CARPA, (or his successor
trustee), as Trustee of the Ranch Holding
Trust; et al.,
Defendants,
JOHN CAREY; et al.,
Applicants for Intervention.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Michael Carey and Leone Carey appeal pro se from the district court’s order
denying their motion to vacate the judgment. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a district court’s decision on a Fed. R. Civ. P.
60(b)(4) motion. Retail Clerks Union Joint Pension Trust v. Freedom Food Ctr.,
Inc., 938 F.2d 136, 137 (9th Cir. 1991). We affirm.
The district court properly denied the Careys’ motion to vacate as untimely
because the motion was filed nearly three years after the judgment, and the Careys
did not provide any legitimate excuse for the delay. See, e.g., Hammer v. Drago
(In re Hammer), 940 F.2d 524, 526 (9th Cir. 1991) (un-excused two year delay in
filing a motion for relief from judgment was unreasonable). Moreover, contrary to
the Careys’ contentions, the bankruptcy court ruled that their tax liability was non-
dischargeable. See United States v. Carey (In Re Carey), 326 B.R. 816, 824
(Bankr. E.D. Cal. 2005).
The Careys’ remaining contentions are unpersuasive.
We do not consider matters that are not specifically and distinctly raised and
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 10-16361
argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir.
2009) (per curiam).
AFFIRMED.
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