Norwood Price v. Los Angeles County , 591 F. App'x 639 ( 2015 )

FILED
NOT FOR PUBLICATION FEB 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORWOOD PRICE, No. 13-55359
Plaintiff - Appellant, D.C. No. 2:10-cv-05754-GAF-JC
v.
MEMORANDUM*
LOS ANGELES COUNTY; et al.,
Defendants - Appellees,
And
LOS ANGELES COUNTY SOCIAL
SERVICES DEPARTMENT; et al.,
Defendants.
MARGARET PRICE, No. 13-55829
Plaintiff, D.C. No. 2:10-cv-05754-GAF-JC
And
NORWOOD PRICE,
Plaintiff - Appellant,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v.
LOS ANGELES COUNTY SOCIAL
SERVICES DEPARTMENT,
Defendant,
And
LOS ANGELES COUNTY; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Submitted February 12, 2015**
Pasadena, California
Before: CALLAHAN, WATFORD, and OWENS, Circuit Judges.
Norwood Price, a retired attorney proceeding pro se, lived with and took
care of his elderly mother, Margaret Price. When Margaret was hospitalized in
June 2009, her frailty, dementia, and bedsores raised concerns as to the adequacy
of Norwood’s care. Sasha Lala, a social worker, was assigned her case. Through
meetings with Margaret’s caregivers and officials, Lala prompted the issuance of
an emergency protective order prohibiting Norwood from removing Margaret from
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
her nursing facility. Over Norwood’s objection a conservator was appointed.
Eventually Norwood regained conservatorship of Margaret on the condition that he
not remove her from the nursing home. Norwood then sued Lala and the other
officials involved with the care of his mother, claiming that they had violated his
constitutional rights. After some discovery, the district court granted summary
judgment for the defendants. Norwood eventually appealed from the denial of his
untimely Rule 59 motion and from the denial of his motion to re-tax costs. We
affirm, as Norwood has failed to show that the district court abused its discretion in
denying his untimely Rule 59 motion or in denying the motion to re-tax costs.1
1. A motion for a new trial pursuant to Federal Rule of Civil Procedure 59
“must be filed no later than 28 days after the entry of judgment.” Fed. R. Civ. P.
59(b). Norwood’s Rule 59 motion was one day late. The 28-day filing period is
mandatory and jurisdictional. 12 James Wm. Moore et al., Moore’s Federal
Practice, ¶ 59.11[1][a] (3d ed. 2014). An untimely Rule 59 motion may be treated
as a motion under Rule 60, but it does not stay the time for appealing the
underlying judgment. Fed. R. Civ. P. 60(c)(2) (“The motion does not affect the
judgment’s finality or suspend its operation.”). Accordingly, Norwood’s notice of
1
We have fully considered Norwood’s motion to unseal documents and
the materials attached to the motion. The motion to unseal documents is denied.
3
appeal filed after the district court denied his untimely Rule 59 motion as a Rule 60
motion does not challenge the district court’s prior final judgment.
2. We review the denial of a Rule 60 motion for reconsideration for abuse
of discretion. United Nat’l Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772,
780 (9th Cir. 2009). Here, the district court reasonably determined that regardless
of Norwood’s claims of restricted discovery and misstatements by Lala and others,
Margaret’s medical condition and the contemporary records show that Lala and
others were reasonably concerned with Norwood’s care of Margaret. Even if we
accept Norwood’s assertions that there are some questions as to what some
individuals said to Lala on particular occasions, the evidence clearly rebuts his
assertion that she committed the tort of interfering with his familial relationship.
The untimely Rule 59 motion was properly denied.
3. We recognize a presumption in favor of awarding costs to the prevailing
party, and the standard for reviewing an award is abuse of discretion. See Escriba
v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1247 (9th Cir. 2014). As Norwood’s
motion to re-tax was based on claims of restricted discovery and misstatements by
the defendants that the district court had previously rejected, the district court’s
denial of the motion to re-tax costs was not an abuse of discretion.
4
The district court’s denial of Norwood’s untimely Rule 59 motion and its
denial of his motion to re-tax costs are AFFIRMED.
5