Manzano v. California Department of Motor Vehicles , 467 F. App'x 683 ( 2012 )

FILED
NOT FOR PUBLICATION JAN 31 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MERCURY MANZANO, No. 10-55117
Plaintiff - Appellant, D.C. No. 2:08-cv-05040-ODW-
VBK
v.
THE STATE OF CALIFORNIA MEMORANDUM *
DEPARTMENT OF MOTOR
VEHICLES; GEORGE VALVERDE;
CHARLES UNO; VALERIE LOGAN;
LUPA VEGA; GALDINO IBARRA,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted November 9, 2011
Pasadena, California
Before: SCHROEDER and REINHARDT, Circuit Judges, and HUDSON, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Henry E. Hudson, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Mercury Manzano appeals from the dismissal of his 42 U.S.C. § 1983 action
for failure to prosecute. Plaintiff repeatedly missed deadlines to file a second
amended complaint. The district court denied plaintiff’s untimely stipulation for a
further extension of time. When plaintiff failed to file an opposition to the motion
to dismiss, the district court dismissed the action. The district court then denied
Manzano’s application to set aside the dismissal, which had contended that the
neglect of his counsel should be excused due to illness. Pursuant to the terms of
F.R.A.P. 4(a)(7)(A)(ii), we have jurisdiction over the appeal because the time for
filing the notice of appeal was extended to 180 days from the entry of the dismissal
order. Stephanie-Cardona LLC v. Smith’s Food and Drug Centers, Inc., 476 F.3d
701, 703 (9th Cir. 2007).
Plaintiff’s belated Motion to be Relieved of Default in Timely Submitting
Excerpt of Record in this court is granted. The Excerpts are ordered filed.
The district court did not abuse its discretion in denying Manzano’s
untimely stipulation for a further extension of time to file a second amended
complaint. See Kyle v. Campbell Soup Co., 28 F.3d 928, 930 (9th Cir. 1994).
Manzano sought neither a timely extension under F.R.C.P. 6(b)(1)(A) before the
deadline for filing a second amended complaint, nor an extension under F.R.C.P.
6(b)(1)(B) for excusable neglect after the deadline had passed. Manzano was not
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entitled to rely on the stipulation, as it was not binding on the court. See In re
Sonoma V., 703 F.2d 429, 431 (9th Cir. 1983).
In seeking to set aside the dismissal, Manzano styled his application as one
pursuant to F.R.C.P. 60(b)(1), claiming excusable neglect. Neither his motion nor
his brief on appeal, however, contended that any of the factors to be considered in
such an application were satisfied. See Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993); Briones v. Riviera Hotel & Casino,
116 F.3d 379, 381 (9th Cir. 1997). Moreover, the neglect that Manzano sought to
have the court excuse—his failure to file a timely second amended
complaint—was not the basis for the district court's dismissal of the action. The
action was dismissed because Manzano failed to file a response to the state’s
motion to dismiss. The district court was therefore correct to deny Manzano’s
application, which did not address the actual basis of the judgment.
AFFIRMED.
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