Unpublished Disposition, 845 F.2d 329 (9th Cir. 1986)

MEMORANDUM^* 

The Tauschers appeal the district court's dismissal of their complaint for lack of prosecution, and denial of their motion for Rule 60(b) relief. We affirm.

On November 27, 1982, the Tauschers' father was killed in an explosion at an Air Force missile testing site in Tennessee. The Tauschers filed a wrongful death action under the Federal Tort Claims Act on November 29, 1983. The Tauschers were represented by Lloyd Staley, an attorney with the Law Offices of Melvin M. Belli, Sr. After filing the complaint, Staley apparently did nothing further. Defendant Aerojet moved to dismiss the action for lack of prosecution, and the district court granted that motion on June 19, 1984. On November 28, 1984, the district court dismissed the complaint in its entirety.

On April 10, 1985, the Tauschers moved to vacate the dismissal pursuant to Fed. R. Civ. P. 60(b) (6), alleging that Staley's drug problem constituted "extraordinary circumstances" meriting relief. The district court conducted an evidentiary hearing, and denied the Tauschers' motion on September 5, 1986.

Under Rule 60(b), the court may relieve a party from a final judgment for mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, or "any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b). The district court's opinion noted that Staley's actions in this case did not constitute inadvertence or excusable neglect, and thus that the Tauschers' motion fell under Rule 60(b) (6).

Rule 60(b) (6) requires "extraordinary circumstances." Corex Corp. v. United States, 638 F.2d 119, 121 (9th Cir. 1981). The district court in this case concluded that the Tauschers had made an inadequate showing, noting hearsay evidence that Staley was using cocaine, but pointing out that there was no evidence that Staley was unable to perform his duties. The court further observed that even if Staley was incapacitated, there were other attorneys in the Belli office. Finally, the district court noted that a motion for relief under Rule 60(b) must be filed within a reasonable time. The Belli firm dismissed Staley in July and assigned the Tauschers' case to another attorney in August. The hearing on the motion to dismiss for lack of prosecution was scheduled for August 27, and that hearing was on the Belli firm's master calendar. Yet no one with the firm appeared or responded in any way. The motion for relief was not filed until April of 1985. The district court concluded that on the facts of this case, the motion was not filed within a reasonable time.

We are in complete agreement with the district court.

AFFIRMED.