Jimmy Ewenike v. Carolyn W. Colvin , 513 F. App'x 676 ( 2013 )

FILED
NOT FOR PUBLICATION MAR 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VICTOR HERNANDEZ, No. 10-56416
Defendant. D.C. No. 2:00-cv-04572-VBK
__________________________________
JIMMY OGBONNA EWENIKE, MEMORANDUM *
Appellant,
v.
CAROLYN W. COLVIN,** Acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Victor B. Kenton, Magistrate Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Pursuant to Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Carolyn W. Colvin, Acting Commissioner of Social Security, is
substituted for Michael Astrue.
Submitted March 8, 2013 ***
Pasadena, California
Before: PAEZ and WATFORD, Circuit Judges, and CONLON, District Judge.****
Jimmy Ewenike appeals the district court’s denial of his motion under
Federal Rule of Civil Procedure 60(b) to reopen and amend an order awarding him
attorney’s fees pursuant to 42 U.S.C. § 406(b) based on a subsequent award of
past-due benefits to his client’s minor child. We have jurisdiction pursuant to 28
U.S.C. § 1291. We review the district court’s denial of relief under Rule 60(b) for
an abuse of discretion. Fantasyland Video, Inc. v. County of San Diego, 505 F.3d
996, 1001 (9th Cir. 2007). We affirm.
The district court did not abuse its discretion in concluding Ewenike failed
to comply with the requirements of Rule 60(b)(2) because he failed to show
reasonable diligence in pursuing his claim for attorney’s fees from the award to
claimant’s minor son. Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833
F.2d 208, 211-12 (9th Cir. 1987) (no abuse of discretion where movant under Rule
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
****
The Honorable Suzanne B. Conlon, District Judge for the United
States District Court for the Northern District of Illinois, sitting by designation.
2
60(b)(2) failed to show (1) newly discovered evidence, (2) an exercise of
reasonable due diligence to discover the evidence, and (3) a likelihood the
evidence would impact the prior judgment). For example, he failed to mention
fees for the subsequent award to claimant’s minor son in his fee petition or to give
notice to the district court that his approved fee petition was only preliminary and
he would later seek supplemental fees. Accordingly, we affirm the district court’s
denial of Ewenike’s motion to reopen and amend.1
AFFIRMED.
1
Because the Commissioner’s letter has no effect on this court’s
disposition, Ewenike’s informal request to strike the letter is denied.
3