Lashon Sales v. Debbie Asuncion ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LASHON SALES, individually and as No. 20-56145
successor-in-interest to Decedent Cameron
Wagner, D.C. No.
2:18-cv-03606-RGK-GJS
Plaintiff-Appellant,
v. MEMORANDUM*
DEBBIE ASUNCION, Warden, California
Department of Corrections, Los Angeles
County; DOES, 1-50, inclusive, individually
and in their official capacities,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted October 20, 2021**
Pasadena, California
Before: KLEINFELD, R. NELSON, and VANDYKE, Circuit Judges.
Six months after judgment in this case, appellant Lashon Sales filed a 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).
60(b) motion for relief from that judgment. Rule 60(b) allows the district court to
relieve a party from judgment when there is newly discovered evidence, changed
law, fraud, misconduct, mistake, or some other reason that justifies extraordinary
relief. Fed. R. Civ. P. 60(b). The district court denied the motion because appellant
failed to identify new facts, changed law, or any other reason judgment should be
altered under the demanding Rule 60(b) standard. That order, and only that order,
is now on appeal. We affirm.1
Appellant argues that we should use this appeal of a post-judgment order to
review the entire underlying case, including the district court’s rulings on summary
judgment. The result here might have been different if appellant timely appealed the
district court’s final judgment. See 28 U.S.C. § 2107(a); Fed. R. Civ. P. 60(b); Fed.
R. App. P. 3, 4(a)(1)(A), 4(a)(4)(A)(vi). But she did not do so, meaning we can only
review the district court’s order denying her Rule 60(b) motion. See Lal v.
California, 610 F.3d 518, 523–24 (9th Cir. 2010) (explaining the court lacked
jurisdiction to review an underlying dismissal order when a Rule 60 motion was filed
after the deadline to appeal); United States v. Sadler, 480 F.3d 932, 937 (9th Cir.
2007) (explaining that a timely notice of appeal is jurisdictional); Molloy v. Wilson,
878 F.2d 313, 315 (9th Cir. 1989) (“An appeal from a denial of a Rule 60(b) motion
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The parties are familiar with the facts and procedural history of this case, so we
recite only those facts necessary to decide this appeal.
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brings up only the denial of the motion for review, not the merits of the underlying
judgment.”).
We review denial of a 60(b) motion to reconsider judgment for abuse of
discretion. Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1100 (9th Cir.
2006). “Under this standard, we can reverse only if a district court does not apply
the correct law, rests its decision on a clearly erroneous finding of material fact, or
applies the correct legal standard in a manner that results in an abuse of discretion.”
Id. (citation and quotation marks omitted).
Here, the district court properly identified Rule 60(b) and a corresponding
local rule and accurately stated that a motion for reconsideration could not be used
to re-litigate a lawsuit. Then, the district court applied the rule and analyzed
appellant’s requests for reconsideration of orders on multiple motions for leave to
amend and a motion for summary judgment, finding there had been no changes in
law or fact to justify relief under Rule 60(b). We cannot say the district court abused
its discretion here. See Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248
F.3d 892, 899 (9th Cir. 2001) (finding no abuse of discretion where a district court
denied a Rule 60(b) motion in which movants merely reiterated previously raised
arguments); Casey v. Albertson’s Inc., 362 F.3d 1254, 1261 (9th Cir. 2004) (“[T]his
is a clear attempt to relitigate the issue central to the merits of this case and the
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district court’s summary judgment [order]. As the merits of a case are not before the
court on a Rule 60(b) motion, this claim fails as well.”).
Because our review is limited to the district court’s denial of appellant’s Rule
60(b) motion, we conclude that the district court did not abuse its considerable
discretion in denying relief. Appellant has not shown otherwise. We AFFIRM.
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