Melissa Strafford v. Eli Lilly and Company ( 2020 )

FILED
NOT FOR PUBLICATION
JAN 16 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELISSA STRAFFORD; CAROL No. 18-56064
JACQUEZ; DAVID MATTHEWS, JR.,
on behlaf of themselves and all other D.C. No.
persons similarly situated, 2:12-cv-09366-SVW-MAN
Plaintiffs-Appellants,
MEMORANDUM*
v.
ELI LILLY AND COMPANY, an Indiana
corporation
Defendant-Appellee.
Appeal from the United States District Court
for Central California, Los Angeles
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted January 6, 2020,
Pasadena, California
Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
This appeal arises from a putative class action lawsuit against defendant Eli
Lilly and Company (“Lilly”) for alleged harms related to its marketing and labeling
of an antidepressant drug. After receiving a series of adverse rulings at the district
court level, plaintiffs voluntarily dismissed their claims to take advantage of then-
existing Ninth Circuit law allowing plaintiffs to appeal lower court rulings by
voluntarily dismissing their claims with prejudice. However, after an intervening
Supreme Court decision, Baker v. Microsoft Corp., 137 S. Ct. 1702 (2017),
invalidated this voluntary dismissal tactic and deprived the Ninth Circuit of
jurisdiction over their appeal, plaintiffs then sought to reopen their case by filing in
the district court a motion under Fed. R. Civ. P. 60(b)(6). Plaintiffs now appeal the
district court’s denial of that motion, which we review under an abuse of discretion
standard. Buck v. Davis, 137 S. Ct. 759, 777 (2017).
In order to obtain relief under Rule 60(b)(6) plaintiffs must demonstrate the
existence of “‘extraordinary circumstances’ justifying the reopening of a final
judgment.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). This court’s recent
decision in Henson v. Fidelity National Financial, Inc., 943 F.3d 434 (9th Cir.
2019), demonstrates that plaintiffs have failed to make such a showing here. In
Henson, although this court held that the change in law represented by Baker
constituted an extraordinary circumstance justifying Rule 60(b)(6) relief in that
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case, it also emphasized that Rule 60(b)(6) analysis requires a “case-by-case
inquiry . . . captur[ing] all of the relevant circumstances.” Id. at 445-46.1 Material
differences between the facts of Henson and the present case demonstrate that
similar relief is not warranted here.
Unlike the voluntary dismissal in Henson that was stipulated to by both
parties, the voluntary dismissal in this case was vehemently contested by the
defendant. This demonstrates that plaintiffs “knowingly risked permanent finality,”
because Lilly indicated “its position would be that the case was entirely over if
there was no appellate jurisdiction.” Id. at 448. Indeed, the plaintiffs themselves
acknowledged that a lack of jurisdiction would end their case in a district court
brief. Moreover, Lilly’s opposition, when coupled with the filing of the Baker
certiorari petition prior to the granting of the voluntary dismissal, makes clear that
plaintiffs “should have known that the law might change in an unfavorable way.”
Id. at 447. In short, the record reveals that plaintiffs’ choice to move for a
voluntary dismissal, unlike the plaintiffs’ actions in Henson, was the kind of “free,
calculated, deliberate choice[] . . . not to be relieved from” through a Rule 60(b)(6)
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Furthermore, Henson, by reiterating that this court’s application of six
factors in Phelps v. Alameida, 569 F.3d 1120 (9th Cir. 2009), “was not meant to
‘impose a rigid or exhaustive checklist’” for evaluating Rule 60(b) claims based on
a change in law, precludes plaintiffs’ argument that the district court erred by
failing to explicitly apply the Phelps factors. Henson, 943 F.3d at 445.
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motion. Ackermann v. United States, 340 U.S. 193, 198 (1950). For these, and
other reasons, the district court’s denial of Rule 60(b)(6) relief was not an abuse of
discretion.
Plaintiffs’ alternative argument that the district court abused its discretion by
denying Rule 60(b) relief based on Davidson v. Kimberly-Clark Corp., 889 F.3d
956, 963 (9th Cir. 2018), is no more successful. Plaintiffs argue that Davidson
constitutes a change in law justifying reopening the district court’s dismissal of its
injunctive and declaratory relief claims because Davidson clarified that “a
previously deceived consumer may have standing to seek an injunction against
false advertising or labeling, even though the consumer now knows or suspects that
the advertising was false at the time of the original purchase.” Id. at 969. It is not at
all clear, however, whether such a holding actually undermines the district court’s
conclusion in the instant case that plaintiffs lacked standing to seek injunctive and
declaratory relief. This court has held that doubt about whether a change in law
would impact the original opinion weighs “heavily” against Rule 60(b) relief,
rendering the district court’s opinion reasonable. Jones v. Ryan, 733 F.3d 825, 840
(9th Cir. 2013); see also Lopez v. Ryan, 678 F.3d 1131, 1137 (9th Cir. 2012).
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Finally, this Ccurt lacks jurisdiction to conduct the review of certain of the
district court’s decisions that preceded the voluntary dismissal that the plaintiffs
now seek to substantively attack. The Supreme Court has held that “an appeal from
denial of Rule 60(b) relief does not bring up the underlying judgment for review.”
Browder v. Dir., Dep’t of Corr. of Illinois, 434 U.S. 257, 263 n.7 (1978). The
Ninth Circuit has recognized this principle in multiple cases. See, e.g., Molloy v.
Wilson, 878 F.2d 313, 315 (9th Cir. 1989); Harman v. Harper, 7 F.3d 1455, 1458
(9th Cir. 1993). Accordingly, we do not review the merits of the district court’s
dismissal of plaintiffs’ claim for injunctive and declaratory relief, or its failure to
grant their request to amend their complaint.
AFFIRMED.
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