Joseph Dong v. Ben Carson ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH DONG, No. 17-55603
Plaintiff-Appellant, D.C. No.
2:15-cv-03539-GHK-AJW
v.
BEN CARSON, Secretary, United States MEMORANDUM*
Department of Housing and Urban
Development, a federal agency; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Submitted October 12, 2018**
Pasadena, California
Before: SCHROEDER and NGUYEN, Circuit Judges, and SIMON,*** District
Judge.
Joseph Dong appeals the district court’s denial of relief under Federal 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).
***
The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
of Civil Procedure 60(b)(1) and (b)(6). We have jurisdiction under 28 U.S.C.
§ 1291 and affirm.
First, Rule 60(b)(1) allows courts to “relieve a party or a party’s legal
representative from a final judgment on the basis of mistake, inadvertence,
surprise, or excusable neglect.” Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223
(9th Cir. 2000). When determining whether to grant relief for late filings or
failures to appear under Rule 60(b)(1) for excusable neglect, we apply the test set
forth in Pioneer and Briones. See Pioneer Investment Services Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 394 (1993); Briones v. Riviera Hotel & Casino,
116 F.3d 379, 381–82 (9th Cir. 1997). We evaluate four factors: “(1) the danger of
prejudice to the opposing party; (2) the length of the delay and its potential impact
on the proceedings; (3) the reason for the delay; and (4) whether the movant acted
in good faith.” Bateman, 231 F.3d 1223–24 (citing Pioneer, 507 U.S. at 395).
Ignorance and carelessness do not quality for Rule 60(b)(1) relief. See Engleson v.
Burlington N. R.R. Co., 972 F.2d 1038, 1043 (1992).
Here, the district court properly applied the four Pioneer-Briones factors
when Dong’s counsel failed to oppose a motion to dismiss. The district court
concluded that the first factor weighed slightly against relief because six years had
passed since the alleged discriminatory events. As to the second factor, the one-
year delay before Dong filed the Rule 60 motion weighed heavily against relief.
2
The district court also thoroughly discussed the third factor, concluding that the
delay in filing the Rule 60 motion and Dong’s counsel’s ability to do other work
during that time period weighed against relief. As to the final factor, Dong
appeared to act in good faith which weighed slightly in his favor, but not enough to
overcome the other factors.
Rule 60(b)(6) is a catch-all rule sparingly allowing for relief from a final
judgment in “extraordinary circumstances” to prevent “manifest injustice.” See
Community Dental Servs. v. Tani, 282 F.3d 1164, 1171–72 (9th Cir. 2002); United
States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (1993). Here, Dong
has failed to show extraordinary circumstances. Therefore, the district court did
not abuse its discretion in denying the Rule 60 motion.1
AFFIRMED.
1
We do not reach the merits of the underlying judgment. See Floyd v. Laws, 929
F.2d 1390, 1400 (9th Cir. 1991) (“An appeal from a denial of a Rule 60(b) motion
brings up only the denial of the motion for review, not the merits of the underlying
judgment”).
3