Brown Jordan International Inc v. Dale Boles

FILED
NOT FOR PUBLICATION
APR 13 2010
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BROWN JORDAN ) No. 09-55259
INTERNATIONAL INC., )
a Florida corporation, ) D.C. No. 2:02-CV-05226-GAF-VBK
)
Plaintiff – Appellee, ) MEMORANDUM *
)
v. )
)
DALE BOLES, an individual, )
)
Defendant – Appellant. )
)
) No. 09-55498
BROWN JORDAN )
INTERNATIONAL INC., ) D.C. No. 2:02-CV-05226-GAF-VBK
a Florida corporation, )
)
Plaintiff – Appellee, )
)
v. )
)
DALE BOLES, an individual, )
)
Defendant – Appellant. )
)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Submitted April 6, 2010 **
Pasadena, California
Before: FERNANDEZ, SILVERMAN, and GRABER, Circuit Judges.
Dale Boles appeals the district court’s denial of his motion for attorney’s
fees. The district court determined that the motion was not timely. We affirm.
Boles’ request for fees followed the district court’s order denying a motion
to reopen that had been filed by Brown Jordan International, Inc. (“BJI”). Review
of that order makes it plain that it was a final determination of the motion. It fully
adjudicated the issues and evidenced the district court’s “‘intention that it be the
court’s final act.’” Casey v. Albertson’s Inc., 362 F.3d 1254, 1258 (9th Cir. 2004);
see also Ford v. MCI Commc’ns Corp. Health & Welfare Plan, 399 F.3d 1076,
1079–80 (9th Cir. 2005); Beaudry Motor Co. v. Abko Props., Inc., 780 F.2d 751,
754–55 (9th Cir. 1986). In fact, Boles’ motion for fees made it plain that he
understood that the order was final.1
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
1
Boles alludes to other possible arguments regarding finality, but he has not
developed those on appeal. We will not consider them. See Indep. Towers of
Wash. v. Washington, 350 F.3d 925, 929–30 (9th Cir. 2003).
2
Boles had fourteen days to file his motion for attorney’s fees,2 but he did not
file his motion until twenty-seven days after entry of the order. He, however,
argues that the time to file his motion had not yet begun to run because no separate
document setting forth the denial of the motion to reopen had been filed. See Fed.
R. Civ. P. 58(a). In that Boles errs because the order was a denial of a motion for
relief from a final order3 for which no separate document was required.4 It does
not matter that BJI did not mention Rule 60 in its motion to reopen because the
label on a motion has little or no significance. See Harvest v. Castro, 531 F.3d
737, 745–46 (9th Cir. 2008); Hasbrouck v. Texaco, Inc., 879 F.2d 632, 635–36
(9th Cir. 1989); Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 386 (9th Cir.
1988). What BJI sought here was a reopening so that it could demonstrate that
Boles had repeatedly breached the prior settlement agreement and pursue further
claims against him. That could be characterized as a motion for relief from a final
judgment. See Fed. R. Civ. P. 60(b)(6); Keeling v. Sheet Metal Workers Int’l
Ass’n, Local Union 162, 937 F.2d 408, 410–11 (9th Cir. 1991); see also Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 378, 114 S. Ct. 1673, 1675, 128 L.
2See Fed. R. Civ. P. 54(d)(2)(B)(i); see also C.D. Cal. R. 54–12.
3
See Fed. R. Civ. P. 60(b)(6).
4
See Fed. R. Civ. P. 58(a)(5).
3
Ed. 2d 391 (1994); Lehman v. United States, 154 F.3d 1010, 1017 (9th Cir. 1998).
The district court so characterized the motion to reopen, and, despite Boles’ later
jeremiads, the terms of the order made it perfectly clear that the district court was
deciding a Rule 60(b)(6) motion. Thus, the time to request fees began to run when
the order itself was entered, and Boles’ motion for fees was not timely.5
AFFIRMED.
5
Because the district court did not err in deciding the issue, it did not abuse
its discretion when it declined to reconsider. See Phelps v. Alameida, 569 F.3d
1120, 1131–32 (9th Cir. 2009).
4