Million (Far East) Ltd. v. Lincoln Provisions Inc. , 581 F. App'x 679 ( 2014 )

FILED
NOT FOR PUBLICATION JUN 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILLION (FAR EAST) LTD., a foreign No. 11-55766
company,
D.C. No. 2:09-cv-07168-R-AGR
Plaintiff,
v. MEMORANDUM*
LINCOLN PROVISIONS INC. USA, a
corporation,
Third-party-plaintiff -
Appellee,
v.
PHILIP WOLFSTEIN,
Third-party-defendant -
Appellant,
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted June 3, 2014
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TROTT and CALLAHAN, Circuit Judges, and BENNETT, District
Judge.**
Third-party Appellant-Defendant Philip Wolfstein (“Wolfstein”) appeals the
district court’s order denying as untimely his Federal Rule of Civil Procedure 60(b)
(“Rule 60(b)”) motion for relief from default judgment. Because the parties are
familiar with the facts and procedural history of the case, we repeat only those
facts necessary to resolve the issues raised on appeal. To the extent that
Wolfstein’s motion is not untimely, it fails on the merits, and we affirm.
1. Rule 60(b)(1), (3), and (6)
Wolfstein first argues that the district court erred in denying his Rule 60(b)
motion as untimely. Motions to set aside the judgment under Rule 60(b)(1), (3),
and (6) must be brought within a reasonable time. Fed. R. Civ. P. 60(c)(1);
Lemoge v. United States, 587 F.3d 1188, 1196 (9th Cir. 2009). “What constitutes
‘reasonable time’ depends upon the facts of each case, taking into consideration the
interest in finality, the reason for delay, the practical ability of the litigant to learn
earlier of the grounds relied upon, and prejudice to the other parties.” Lemoge, 587
F.3d at 1196. Even accounting for Wolfstein’s pro se status, the district court did
not abuse its discretion in finding that the motion was untimely with respect to its
**
The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
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requests for relief under Rule 60(b)(1), (3), and (6), because: (a) Wolfstein filed the
motion almost eight months after the default judgment was entered, long after the
time for an appeal had passed; (b) Wolfstein offered no explanation to the district
court for his delay in filing the motion; and (c) he already knew the grounds for his
motion several months prior to filing the motion, having already presented a
similar motion to set aside the entry of default under Federal Rule of Civil
Procedure 55(c) (“Rule 55(c)”).
Even if Wolfstein’s requests for relief under Rule 60(b)(1), (3), and (6) were
timely, they fail on the merits. Denials of motions brought under Rule 60(b)(1),
(3), and (6) are reviewed for abuse of discretion. Lemoge, 587 F.3d at 1191–92.
To show excusable neglect under Rule 60(b)(1), a court considers: (a) whether the
defendant has a meritorious defense; (b) whether the defendant engaged in
culpable conduct that led to the default; and (c) whether reopening the default
judgment would prejudice the plaintiff. TCI Grp. Life Ins. Plan v. Knoebber, 244
F.3d 691, 696 (9th Cir. 2001). The district court did not abuse its discretion in
implicitly finding that Wolfstein lied about having received notice of the lawsuit
and therefore acted in bad faith, barring Rule 55(c) relief. This finding also
supports the denial of Rule 60(b)(1) relief due to Wolfstein’s culpable conduct.
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Wolfstein’s request for relief under Rule 60(b)(3) fails on its merits because
he has not shown by clear and convincing evidence that Lincoln committed fraud,
misrepresentation, or misconduct in obtaining the default judgment. See Jones v.
Aero/Chem Corp., 921 F.2d 875, 878–79 (9th Cir. 1990). Finally, Wolfstein has
not shown the extraordinary circumstances required to set aside a judgment under
Rule 60(b)(6). See United States v. Alpine Land & Reservoir Co., 984 F.2d 1047,
1049–50 (9th Cir. 1993).
2. Rule 60(b)(4)
Motions to set aside a judgment as void under Rule 60(b)(4) may be brought
at any time. Meadows v. Dominican Republic, 817 F.2d 517, 521 (9th Cir. 1987).
Accordingly, the district court erred in denying the motion as untimely with respect
to its request to set aside the judgment under Rule 60(b)(4). Nonetheless, we may
affirm the denial of relief on any ground supported by the record. SEC v. Internet
Solutions for Bus. Inc., 509 F.3d 1161, 1165 (9th Cir. 2007). A district court’s
factual findings regarding jurisdiction are reviewed for clear error. Id. Further, “a
defendant moving to vacate a default judgment based on improper service of
process, where the defendant had actual notice of the original proceeding but
delayed in bringing the motion until after entry of default judgment, bears the
burden of proving that service did not occur.” Id. The district court did not clearly
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err in finding that Wolfstein had actual notice of the suit from Lincoln’s emails,
and that Wolfstein had not met his burden of showing that Lincoln’s service by
publication was improper. Accordingly, we affirm the denial of Rule 60(b)(4)
relief.
AFFIRMED.
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