Jose Roe v. Thomas White

FILED
NOT FOR PUBLICATION SEP 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE ROE, a minor, by Mauricio No. 08-15891
Rodriguez Borrego, his guardian and
litem; et al., D.C. No. 3:03-CV-04035-CRB
Plaintiffs - Appellees,
MEMORANDUM *
v.
THOMAS F. WHITE,
Defendant - Appellant.
NATHAN LOVASS, et al.,
Defendants.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted September 8, 2010 **
San Francisco, California
Before: KLEINFELD, THOMAS and WARDLAW, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Thomas White appeals from the district court’s denial of his motion to
vacate a judgment approving the parties’ settlement agreement. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. A motion brought under Rule 60(b)(3) must be brought within one year.
Fed. R. Civ. P. 60(c)(1). White’s request for relief under Rule 60(b)(3) was made
more than two years after entry of the challenged judgment and was therefore
untimely.
2. The district court acted within its discretion in concluding that there were
no extraordinary circumstances or manifest injustice that warranted vacatur. See
Fed. R. Civ. P. 60(b)(6); Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097,
1103 (9th Cir. 2006). White argues that the special master’s finding that the
guardian ad litem had a conflict of interest is a new circumstance that prejudices
White because it raises the possibility that a plaintiff may someday seek to
invalidate the settlement agreement on that ground. However, as the district court
explained, it is speculative at best that a plaintiff would undertake to undo the
settlement, especially where the plaintiffs have opposed White’s repeated motions
to do precisely that. Moreover, if White’s sole concern is to preserve the
settlement, he could accomplish that by reaffirming the agreement with the
2
plaintiffs on the same terms. In any event, questions about the guardian ad litem’s
role in the case are not “new,” as White raised them as early as 2005.
3. The district court acted within its discretion in concluding that the
guardian ad litem’s agreement with the plaintiffs’ counsel was not an attempt to
defile the court or an unconscionable plan or scheme designed to improperly
influence the court. See Fed. R. Civ. P. 60(b)(3); Fed. R. Civ. P. 60(b)(6);
Latshaw, 452 F.3d at 1104; England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960).
The district court had the benefit of a thorough special master’s report, which
detailed the facts and circumstances surrounding the guardian ad litem’s agreement
with the plaintiffs’ counsel. It properly reassessed the validity and fairness of the
underlying settlement in light of that report. Consistent with our mandate in the
previous appeal in this case, the district court found that the settlement continued
to be in the best interests of the plaintiffs, concluding also that adjustments to the
settlement fund were proper in light of the special master’s findings.
4. Subsequent to the district court order, news stories not of record suggest
the possibility that a former attorney for the plaintiffs, a plaintiff to whom moneys
are payable under the order, and others may have committed a fraud on the court.
Although the district court did not err and we affirm, the district court may, on
motion or sua sponte, reopen the case and take such other actions as may in its
discretion be appropriate. See Fed. R. Civ. P. 60(d)(3); Chambers v. NASCO, Inc.,
3
501 U.S. 32, 44 (1991); Dixon v. Comm’r, 316 F.3d 1041, 1046–47 (9th Cir.
2003).
AFFIRMED.
4