Wells Fargo Bank, N.A. v. Andrew Clark ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 27 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WELLS FARGO BANK, N.A., No. 18-35887
Plaintiff-Appellee, D.C. No. 6:11-cv-06248-AA
v.
MEMORANDUM*
ANDREW G. CLARK,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted on August 19, 2019**
Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.
Andrew G. Clark appeals pro se from the district court’s order denying his
motion to vacate the district court’s judgment in Wells Fargo Bank, N.A.’s action
alleging violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and
state law. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse
*
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).
of discretion. United States v. Sierra Pac. Indus., Inc., 862 F.3d 1157, 1166 (9th
Cir. 2017). We affirm.
The district court did not abuse its discretion by denying Clark’s motion to
vacate judgment, which Clark brought nearly six years after the judgment was
entered, because Clark failed to present any facts that were unknown to him at the
time of the entry of judgment. See Sierra Pac. Indus., Inc., 862 F.3d at 1167-1168
(explaining that although a motion for relief for fraud on the court is not subject to
a one-year time limit under Fed. R. Civ. P. 60(d)(3), “relief for fraud on the court is
available only where the fraud was not known at the time of settlement or entry of
judgment”). To the extent Clark’s motion sought disqualification of the district
judge, there was no error in denying the motion because it is untimely. See United
States v. Rogers, 119 F.3d 1377, 1382 (9th Cir. 1997) (failure to file a
disqualification motion until more than one and one-half years after party became
aware of the grounds for disqualification rendered his motion untimely).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
2 18-35887