Kelly Randle v. Lnv Corporation , 679 F. App'x 587 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELLY RANDLE; FRED MITCHELL, No. 15-56097
Plaintiffs-Appellants, D.C. No. 5:14-cv-02280-DDP-SP
v.
MEMORANDUM*
LNV CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Kelly Randle and Fred Mitchell appeal pro se from the district court’s order
denying their motion for relief from judgment under Fed. R. Civ. P. 59(e) and
60(b). We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
discretion. Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d
*
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).
1255, 1262 (9th Cir. 1993), and we affirm.
The district court properly denied plaintiffs’ motion under Fed. R. Civ. P.
59(e) and 60(b) because plaintiffs failed to show grounds for relief. See id. at 1263(setting forth grounds for relief under Rules 59(e) and 60(b)). Contrary to
plaintiffs’ contention, LNV waived defects in service and consented to the district
court’s jurisdiction by removing this action to the district court. See Jackson v.
Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (“Jurisdiction attaches if a
defendant makes a voluntary general appearance, as by filing an answer through an
attorney.” (citations omitted)). Judicial estoppel did not apply because LNV’s
position taken earlier in litigation that service was not properly effected and its
later decision to waive proper service by making a general appearance are not
inconsistent. See Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th
Cir. 2001) (“Judicial estoppel is an equitable doctrine that precludes a party from
gaining an advantage by asserting one position, and then later seeking an
advantage by taking a clearly inconsistent position.”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
2 15-56097
All pending motions and requests are denied.
AFFIRMED.
3 15-56097