Wendall Kabutan v. Pioneer Hi-Bred International , 696 F. App'x 263 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENDALL KABUTAN; WANDA No. 16-16838
NALANI KABUTAN,
D.C. Nos. 1:12-cv-00231-LEK-
Plaintiffs-Appellants, BMK, 1:12-cv-00655-LEK-BMK
v.
MEMORANDUM*
PIONEER HI-BRED INTERNATIONAL, a
DuPont Business and Iowa Corporation; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Wendall and Wanda Kabutan appeal pro se from the district court’s order
denying their Federal Rule of Civil Procedure 60(b) motion for relief from
judgment in this consolidated diversity action. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291. We review for an abuse of discretion, Harvest v. Castro, 531 F.3d
737, 741 (9th Cir. 2008), and we affirm.
The district court did not abuse its discretion by denying the Kabutans’ Rule
60(b) motion because the Kabutans failed to demonstrate any grounds for relief.
See id. at 745-49 (setting forth grounds for reconsideration under Rule 60(b)).
In their opening brief, the Kabutans fail to challenge the district court’s
dismissal of the action for failure to prosecute, and therefore they waived any such
challenge. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir.
2003) (“[W]e will not consider any claims that were not actually argued in
appellant’s opening brief.”).
The Kabutans’ request that certain exhibits filed in the district court be
unsealed, set forth in the opening brief, is denied.
AFFIRMED.
2 16-16838