Bruce Johnson v. Cfs II, Inc

FILED
NOT FOR PUBLICATION JAN 04 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE ALBERT JOHNSON, No. 14-15094
Plaintiff - Appellee, D.C. No. 5:12-cv-01091-LHK
v.
MEMORANDUM*
CFS II, INC., an Oklahoma corporation,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted December 10, 2015**
San Francisco, California
Before: GRABER, WARDLAW, and MURGUIA, Circuit Judges.
Bruce Johnson, a 77-year-old man, sued CFS II, Inc., a debt collection
company, alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C.
*
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).
§ 1692 et seq., and California’s Rosenthal Fair Debt Collection Practices Act, Cal.
Civ. Code § 1788 et seq., in connection with CFS’s attempts to collect credit card
debt allegedly owed by Johnson. The district court granted summary judgment in
favor of Johnson on all claims. CFS appeals the district court’s denial of its
motion for leave to file a motion for reconsideration and the court’s partial grant of
Johnson’s motion for attorney’s fees and costs. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
1. Construing CFS’s motion for leave to file a motion for reconsideration as
a Rule 60(b)(6) motion, the district court did not abuse its discretion in denying it.
Rule 60(b) provides: “On motion and just terms, the court may relieve a party or
its legal representative from a final judgment, order, or proceeding for the
following reasons: . . . (6) any other reason that justifies relief.” However, a Rule
60(b)(6) motion “must be made within a reasonable time,” Fed. R. Civ. P. 60(c)(1),
and Rule 60(b)(6) relief “is available only where extraordinary circumstances
prevented a litigant from seeking earlier, more timely relief,” United States v.
Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). Without
offering any explanation for its delay, CFS requested Rule 60(b)(6) relief five
months after the court entered judgment in favor of Johnson, raising new
arguments in opposition. The district court correctly found that CFS’s Rule
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60(b)(6) motion was untimely and that the previously unraised arguments were
waived.
2. Nor did the district court abuse its discretion in awarding Johnson a
portion of the fees his counsel incurred to travel to Oklahoma to depose CFS’s
employee. See Native Vill. of Quinhagak v. United States, 307 F.3d 1075, 1079
(9th Cir. 2002). An attorney’s travel time is compensable, see Chalmers v. City of
Los Angeles, 796 F.2d 1205, 1216 (9th Cir. 1986), and CFS offers no case law
supporting the rule it would have us adopt here—namely, that attorney travel costs
are per se unreasonable when a deposition could be conducted remotely.
Moreover, the factual findings underlying the court’s award of travel costs are not
clearly erroneous, see Native Vill. of Quinhagak, 307 F.3d at 1079, as CFS adduced
no evidence of its purported offer to fly its deponent to California. Therefore, the
district court did not err in exercising its “considerable discretion” to award the
costs and fees at issue. Webb v. Ada County, 195 F.3d 524, 527 (9th Cir. 1999).
AFFIRMED.
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