Unpublished Disposition, 874 F.2d 815 (9th Cir. 1986)

MEMORANDUM^** 

Philip Saltz appeals from an order of the district court's denial of his motion to vacate entry of a previous judgment and then reenter that judgment so as to permit filing of a timely notice of appeal. We affirm the district court's denial.

On September 29, 1986, appellees Susan Eades, Kathryn Wooley and William Stewart received a judgment against Saltz for negligent breach of California Probate Code Sec. 320 (CR 68). The district court heard Saltz's timely motion for a new trial on November 17, 1986.

At the end of the hearing, the district court announced it was ruling against Saltz's motion for a new trial. The court directed plaintiffs to prepare, serve and lodge a proposed order denying the motion (CR 1). This proposed order was lodged with the court and served on Saltz on November 25, 1986 (CR 84, 103 p. 3). However, it was not entered until December 9, 1986 (CR 84). On December 5, 1986, Saltz filed a notice of appeal (CR 80).

This court initially dismissed Saltz's appeal for lack of jurisdiction. Subsequently, this court granted a petition for rehearing, vacated the order dismissing the appeal and remanded the case to the district court to allow Saltz to move to vacate the judgment under Fed. R. Civ. P. 60(b). The district court then denied Saltz's subsequent motion to vacate, leading to this appeal.

To demonstrate excusable neglect under Rule 60(b), an attorney must show a failure of notice, plus additional equitable factors, including due diligence in attempting to learn whether an order has been entered. See Rodgers v. Watts, 722 F.2d 456, 459 (9th Cir. 1983); Hall v. Community Health Center of Beaver County, 772 F.2d 42, 45 (3d Cir. 1985) (party moving to have judgment vacated and reentered to permit timely filing of appeal must show affirmative action that would have allowed timely filing but for an error by clerk). A district court's decision not to vacate a judgment under Rule 60(b) will not be overturned absent a clear showing of an abuse of discretion. Meadows v. Dominican Republic, 817 F.2d 517, 521 (9th Cir.), cert. denied, 108 S. Ct. 486 (1987) (emphasis in original).

Saltz claims that he failed to file a notice of appeal after the December 9 entry of the decision denying a new trial because of assurances gained on December 5 from the district court clerk that the decision had already been entered. Specifically, Saltz alleged that after he inquired as to whether the decision had been entered, the clerk took his notice of appeal, typed in a sentence referring to the November 17 decision, and then filed the appeal. Saltz further claims that he never received notice of the entry of the decision on December 9.

However, the district court has specifically found that Saltz testimony regarding the clerk's actions is not credible and is an attempt to mislead the court (ER 39). This finding is based on the court's observations of testimony by Saltz and by the court clerk who allegedly typed the additional notation to Saltz's notice of appeal (ER 39). As such it must be upheld unless clearly erroneous. United States v. Wolf, 813 F.2d 970, 974-75 (9th Cir. 1987) (deference to the district court's factual finding is especially warranted when the critical evidence is testimonial). An examination of the record indicates that the court's findings were not in error. In the absence of credible evidence indicating that Saltz made significant affirmative efforts to ascertain whether judgment had been entered, the district court did not abuse its discretion in denying his motion to vacate the original judgment. Cf. Zurich Insurance Co. v. Wheeler, 838 F.2d 338, 340 (9th Cir. 1988) (clerk's mistaken statement over phone that decision had not been entered sufficient excuse for attorney's failure to file, thus district court did not abuse discretion by vacating and reentering previous judgment).

AFFIRMED.