Boon v. Union Pacific Railroad

FILED
NOT FOR PUBLICATION MAR 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JERRI BOON, No. 10-35812
Plaintiff - Appellant, D.C. No. 6:09-cv-01353-AA
v.
MEMORANDUM *
UNION PACIFIC RAILROAD
COMPANY, a foreign corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief Judge, Presiding
Submitted March 6, 2012 **
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Jerri Boon appeals from the district court’s order denying her motion for
relief from judgment under Fed. R. Civ. P. 60(b)(1) in her employment action. We
have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Lemoge v. United States, 587 F.3d 1188, 1191-92 (9th Cir. 2009). We affirm.
Construing the dismissal as without prejudice, the district court did not
abuse its discretion by denying Boon’s Rule 60(b)(1) motion because Boon failed
to establish mistake, inadvertence, surprise, or excusable neglect. See Allmerica
Fin. Life Ins. & Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th Cir. 1998)
(“[N]either ignorance nor carelessness on the part of the litigant or his attorney
provide grounds for relief under rule 60(b)(1).” (citation and internal quotation
marks omitted)).
We do not consider arguments and allegations raised for the first time on
appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Boon’s remaining contentions are unpersuasive.
AFFIRMED.
2 10-35812