Cadkin Ex Rel. Cadkin Trust v. Bluestone

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 13 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
EMIL CADKIN, an individual and as No. 11-56352
Trustee of the Cadkin Trust,
D.C. No. 2:06-cv-00034-ER-CW
Plaintiff - Appellant,
and MEMORANDUM*
LILA CADKIN, as Trustee of the
CADKIN TRUST,
Plaintiff,
v.
LEONA BLUESTONE; ESTATE OF
HARRY BLUESTONE; BLUESTONE
TRUST; CB MUSIC; BLUE RIVER
MUSIC; BROADCAST MUSIC, INC;
AMERICAN SOCIETY OF
COMPOSERS, AUTHORS &
PUBLISHERS,
Defendants,
and
CARLIN PRODUCTION MUSIC;
CARBERT MUSIC,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36–3.
page 2
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Submitted February 11, 2013**
Pasadena, California
Before: KOZINSKI, Chief Judge, KLEINFELD and SILVERMAN, Circuit
Judges.
1. Emil Cadkin brought his motion to set aside the award of attorneys’ fees
long after the one-year period for filing such motions had expired. See Fed. R.
Civ. P. 60(b)(3), (c). He may not circumvent the limitations period for motions
alleging fraud by bringing his motion under the catchall provision in Rule 60(b)(6)
instead. See Lyon v. Agusta S.P.A., 252 F.3d 1078, 1088–89 (9th Cir. 2001).
2. Cadkin’s Rule 60(b) motion was long out of time, contained frivolous
allegations of fraud on the court and impugned the integrity of opposing counsel.
The district court did not abuse its discretion in awarding Carlin Production Music
the attorneys’ fees it incurred opposing both the Rule 60(b) motion and the motion
for reconsideration. See Fantasy, Inc. v. Fogerty, 94 F.3d 553, 558 (9th Cir. 1996).
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
page 3
3. The district court’s finding that Marty O’Toole proceeded in bad faith by
making “repeated indefensible attacks on the fee award” was not clear error, nor
was its order that O’Toole personally satisfy a portion of the attorneys’ fees an
abuse of discretion. See Lahiri v. Universal Music & Video Distrib. Corp., 606
F.3d 1216, 1218–19 (9th Cir. 2010).
AFFIRMED.