Unpublished Disposition, 845 F.2d 1029 (9th Cir. 1987)

No. 87-5902.

United States Court of Appeals, Ninth Circuit.

Before SNEED and PREGERSON, Circuit Judges, and WILLIAM A. INGRAM,^**  District Judge.

MEMORANDUM^* 

FACTS AND PROCEEDINGS

This is a first-party bad faith action against an insurance company for damages arising from late payment of benefits on a garage floor claim, which, after initial denial, was paid eleven months later after reconsideration. Appellants-plaintiffs Mary Scudder and Monette Sutherland (Appellants), mother and daughter respectively, own a Woodland Hills home with an attached garage, which was covered by an Allstate Deluxe Homeowners' Insurance Policy. The Appellants brought this action against Appellee-defendant Allstate Insurance Company (Allstate) for allegedly mishandling their submitted claim concerning the July 5, 1984 garage floor collapse. Scudder and Sutherland appeal the district court's: (1) denial of a continuance of Allstate's summary judgment motion hearing, (2) denial of Appellants' motion to set aside summary judgment and for reconsideration and rehearing, and (3) grant of summary judgment for Appellee Allstate, after the court found that Allstate reasonably processed Appellants' claim and Allstate was not liable for punitive damages because it did not act fraudulently, oppressively, or maliciously in handling the claim.

Because we affirm the district court's rulings on the first two issues, it becomes unnecessary to consider remaining issues presented on appeal.

On January 12, 1987, Allstate noticed a motion for summary judgment for hearing on February 2nd, eight days prior to the calendared trial date. As a result of a full law and motion calendar, the district court continued this motion to March 2nd.

The parties presented a stipulation to the court on January 29th (the January 29th stipulation), to continue the trial date to May 5th. The Appellants also expressed a "wish" in this stipulation to file a cross-motion for summary adjudication to be heard on March 2nd. The cross-motion was to be filed "in accordance with the time deadline set forth in Local Rule 7."¹ 

Allstate was informed by the clerk of the district court on January 30th that the trial date would instead be continued to June 9th and the hearing on the two motions would be continued to March 16th. On the same day, Allstate's counsel communicated this information to Appellants' counsel, Franklin.

Subsequently, Franklin learned from the district court that the March 2nd hearing date for the two motions was being retained. The parties are in dispute on when this information was conveyed. Franklin claims he first learned on February 13th that the hearing was not being continued to March 16th, while Allstate's counsel contends that this information was known by Appellants' counsel on February 5th. Nonetheless, in a February 13th letter to the counsel of Allstate, Franklin noted that he was "preparing" a stipulation to continue the hearing to March 16th or the earliest available date thereafter.

On February 23rd, Franklin sent Allstate's counsel a proposed stipulation to move the hearing on both motions to March 16th. On the next day, Allstate's counsel returned to Franklin a modified stipulation and order (which included a timetable for the filing of papers and continued the hearing on both motions to March 23rd). Franklin lodged this stipulation with the court on February 25th, just five days prior to the March 2nd hearing. The court rejected the proposed stipulation and order on February 26th without explanation (the February 26th stipulation).

On March 2nd, the calendared date of the hearing on Allstate's motion for summary judgment, Appellants filed an opposition brief to Allstate's motion and a cross-motion for summary adjudication. These papers were rejected by the district court clerk for exceeding the 35 page brief limit under Local Rule 3.10, and resubmitted on March 5th with an application for permission to file an oversized brief.

On March 5th, the district court issued its findings of fact and conclusions of law, granting Allstate's motion for summary judgment. Judgment was entered on March 9th.

On March 18th, Appellants noticed a motion to vacate summary judgment, for reconsideration and rehearing, pursuant to Fed. R. Civ. P. 59(e). On April 16th, the district court denied Appellants' motion to set aside judgment, pursuant to Fed. R. Civ. P. 60(b), and denied the motion for reconsideration and rehearing of the court's order granting Allstate's motion for summary judgment. Notice of Appeal was filed on April 30th.

The district court had diversity jurisdiction pursuant to 28 U.S.C. § 1332. This court has jurisdiction to hear this action as a final judgment by the district court under 28 U.S.C. § 1291.

QUESTIONS PRESENTED

Whether the district court abused its discretion in refusing to continue the hearing on Allstate's motion for summary judgment so that Appellants could file a cross-motion for summary adjudication and an opposition to the summary judgment motion?

Whether the district court abused its discretion in denying Appellants' motion to vacate summary judgment, for reconsideration and rehearing?

STANDARD OF REVIEW

The review of a grant or denial of a requested continuance is under an abuse of discretion standard and "will not be overturned unless arbitrary or unreasonable." United States v. 2.61 Acres of Land, More or Less, 791 F.2d 666, 670 (9th Cir. 1985) (per curiam) (citing United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir.), amended on other grounds, 764 F.2d 675 (1985)). See also McElyea v. Babbitt, 833 F.2d 196, 199 (9th Cir. 1987) (per curiam); Armant v. Marquez, 772 F.2d 552, 556 (9th Cir. 1985), cert. denied sub nom. Bunnell v. Armant, 475 U.S. 1099, 106 S. Ct. 1502, 89 L. Ed. 2d 902 (1986).

A denial of a motion under Fed. R. Civ. P. 59(e) or 60(b) is reviewed under an abuse of discretion standard. McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir. 1987) (review of motion under either Rule 59(e) or 60(b) is for abuse of discretion); Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir. 1987) (abuse of discretion standard on review of motions for rehearing and reconsideration of grant of summary judgment under either Rule 59(e) or 60(b)). See also Smith v. Stone, 308 F.2d 15, 17-18 (9th Cir. 1962) (abuse of discretion standard on review of motion to set aside summary judgment under Rule 60(b)).

DISCUSSION

I. Whether the Denial of the Stipulated Continuance Was An Abuse of Discretion?

In ascertaining whether a denial of a continuance was "arbitrary or unreasonable," the appellate court weighs four factors: (1) Appellants' diligence, (2) the usefulness of the continuance, (3) inconvenience to the court and opposing party, and (4) resulting prejudice to the Appellants. 2.61 Acres of Land, 791 F.2d at 671.²  This inquiry is made on a case-by-case basis. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 849-50, 11 L. Ed. 2d 921, 931 (1964). Although none of the four factors is dispositive, the district court ruling will not be overturned " [a]bsent a showing of prejudice suffered by the appellant." 2.61 Acres of Land, 791 F.2d at 671.

Upon evaluation of each of the factors, we find no abuse of discretion by the district court in denying the request for a continuance.

The facts indicate that Appellants were not sufficiently diligent in readying their opposition to the summary judgment motion and in noticing Appellants' cross-motion for summary adjudication. Significantly, the proposed continuance was untimely presented to the district court. According to his letter of February 13th to Allstate's counsel, Franklin expressly reiterated his suggestion "on or about February 6, and again on February 12" to draft a stipulation to continue the hearing "from March 2, 1987, to the earliest date on which it can be heard on or after March 16." The letter further noted that as of February 13th Franklin was "preparing that stipulation." In fact, Franklin did not draft the stipulation until February 23rd, which was redrafted by Allstate's counsel on the next day, and executed and submitted to the district court by Franklin on February 25th, and finally rejected by the court just four days before the noticed hearing date. The stipulation for a continuance was submitted to the court one day late, since Local Rule 7.12 requires that the motion for continuance should have been offered at least six days prior to the calendared hearing date.³ 

Appellants have offered no explanation as to why so much time lapsed before the stipulation was drafted after Franklin first proposed--according to his letter, near the beginning of February--to continue the hearing. Moreover, although the Appellants have argued that the proposed continuance was necessitated by the court's February 13th decision to retain the original March 2nd hearing date,⁴  no reason has been provided in the record why their counsel may have been seeking a continuance to March 16th as early as February 6th, as Franklin's letter notes. Finally, at the time Appellants' counsel first learned that the hearing was rescheduled for March 2nd, Franklin told the court that he planned to file the opposition brief on the summary judgment motion by February 23rd. This opposition and the cross-motion papers were in fact filed one week later, on March 2nd. Instead of portraying an example of diligence, these facts indicate a pattern of unaccountable delay. The diligence factor therefore lies against Appellants.

We also conclude that a grant of the continuance would have been of little, if any, utility. Even if the court had continued the hearing to March 16th, Appellants' cross-motion papers and opposition brief to the motion for summary judgment were still late, having been filed on March 5th after initially having been rejected by the clerk on March 2nd for exceeding the page limitation requirement under the Local Rules. Not only were these papers untimely under the Local Rules,⁵  but this tardiness was also contrary to the January 29th stipulation in which the Appellants explicitly obligated themselves to file their cross-motion in compliance with the deadline requirements under the Local Rules. Furthermore, all counsel appearing before courts of the Central District are on notice that untimely filings may, inter alia, be disregarded by the court, may provide consent to the granting or denial of the motion, and may permit the court to assume that the facts presented by the moving party on a summary judgment motion exist without controversy. See Local Rules 7.3.3, 7.9 & 7.14.3. Since all of the papers would not have been timely filed even if the continuance had been granted, we therefore find that the usefulness factor also militates against Appellants.

C. Inconvenience to the Court and Opposing Party

Allstate could not have been inconvenienced since it was amenable to the continuance as evidenced by the signing of the February 26th stipulation. There is no explanation in the record on the reason the court denied the stipulated continuance. We therefore assume, as did the court in 2.61 Acres of Land, 791 F.2d at 671, that, in the absence of any evidence, the district court would have been inconvenienced by a granting of the continuance.

Finally, we conclude that Appellants were not prejudiced "as a result of the district court's denial" of the continuance." Flynt, 756 F.2d at 1359. Any resulting prejudice was, instead, caused by the lack of diligence of Appellants in requesting a continuance and in filing their papers in a timely manner. As noted, there is no explanation as to why Appellants submitted the February 26th stipulation five days before the noticed hearing (and in violation of the Local Rules) when the record shows that as early as February 6th Franklin planned to draft a stipulation to move the hearing.

Based on the foregoing, we conclude that the continuance was properly denied. After balancing all four factors, we find that each of them militates against Appellants. We are particularly persuaded by the fact that the proposed continuance, the opposition to summary judgment, and summary adjudication papers were all untimely filed.

Because the district court did not abuse its discretion in denying the continuance, and further, because the district court was acting within Local Rule 7 in granting the summary judgment motion in light of Appellants' late papers, it becomes unnecessary to address the merits of the summary judgment motion. However, we briefly consider the district court's ruling on the motion to vacate, for reconsideration and rehearing as an alternative ground in affirming the district court.

II. Whether the Denial of the Motion to Vacate, for Reconsideration and Rehearing Was an Abuse of Discretion?

Appellants' motion to vacate summary judgment, for reconsideration and rehearing, was offered pursuant to Fed. R. Civ. P. 59(e) and considered by the district court under Fed. R. Civ. P. 60(b).⁶  The district court denied Appellants' motion to set aside the judgment because it did not find a sufficient showing of excusable neglect or inadvertance in Appellants' failure to timely file the opposition to Allstate's summary judgment motion. In reaching this result, the district court cited to Smith v. Stone, 308 F.2d 15, 18 (9th Cir. 1962), where it was held that the denial of a motion to set aside summary judgment was not an abuse of discretion where the Appellant failed to comply with the time requirements in the Local Rules and "made a showing of carelessness and lack of proper regard for [the] duty as an attorney and an officer of the court, and no showing of inadvertance, excusable neglect, mistake, [or] surprise." After considering Appellants' untimely opposition papers on the summary judgment motion, the district court found that Appellants "failed to file timely opposition papers," despite having knowledge of the time requirements on the pending motion, and Appellants had "not presented any evidence that would convince the Court to grant" the motion for reconsideration and rehearing. The district court reaffirmed its grant of summary judgment in favor of Allstate and concluded that Allstate acted reasonably in its handling of the claim and denied compensatory and punitive damages.

Because the motion to vacate summary judgment, for reconsideration and rehearing was served within "10 days after entry of judgment," the motion was properly raised under Fed. R. Civ. P. 59(e)⁷  "to alter or amend the judgment" and did not have to be recharacterized by the district court under Fed. R. Civ. P. 60(b).⁸ 

Upon review of the record, we conclude that the district court did not abuse its discretion in denying Appellants' motion to vacate summary judgment, for reconsideration and rehearing because the arguments put forth by Appellants did not constitute inadvertance or excusable neglect. Furthermore, the motion was properly denied because, as the record shows, the Appellants did not make arguments predicated on any of the other grounds under Fed. R. Civ. P. 59(e) or 60(b). See e.g., Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985) (denial of motion for reconsideration proper under Rule 59(e) where no new arguments raised from opposition to summary judgment motion and under Rule 60(b) where Appellants failed to argue any of the exceptions within the rule); Martella v. Marine Cooks Union, Seafarers Int'l Union of North America, AFL CIO, 448 F.2d 729, 730 (9th Cir. 1971) (per curiam) (no abuse of discretion where record did not establish "excusable neglect" under Rule 60(b) (1)), cert. denied, 405 U.S. 974, 92 S. Ct. 1191, 31 L. Ed. 2d 248 (1972). Moreover, in Appellants' moving papers, none of the three grounds for reconsideration recognized under Local Rule 7.16 was advanced.⁹  There being no showing of an abuse of discretion, the district court's denial of the Appellants' motion to vacate summary judgment, for reconsideration and rehearing is affirmed.

As in Smith, in the absence of any finding of error by the district court on the motion to set aside the summary judgment, there is no need to consider the merits of Appellants' arguments appealing the grant of summary judgment in favor of Allstate. See Smith, 308 F.2d at 18.

As a result of our affirmance of the district court's denial of the request for continuance and motion to vacate, for reconsideration and rehearing, it becomes unnecessary to address other issues presented on appeal.

For the foregoing reasons, the judgment of the district court is AFFIRMED.