Unpublished Disposition, 889 F.2d 1094 (9th Cir. 1988)

MEMORANDUM^** 

Suzanne E. Gwin filed a complaint against defendants on March 5, 1986. On February 11, 1988, the district court entered a judgment dismissing her action with prejudice for failure to prosecute. More than a year later, Gwin moved for relief from the judgment under Fed. R. Civ. P. 60(b) (6). The district court denied oral argument on the motion and denied the motion. Gwin argues on appeal that the district court's denial of the motion was an abuse of discretion. We affirm.

Our review of a denial of a Rule 60(b) motion is for abuse of discretion. Martella v. Marine Cooks & Stewards Union, 448 F.2d 729, 730 (9th Cir. 1971), cert. denied, 405 U.S. 974 (1972). To obtain relief from a judgment under Rule 60(b) (6), the moving party must show "extraordinary circumstances." Corex Corp. v. United States, 638 F.2d 119, 121 (9th Cir. 1981).

Gwin filed her complaint on March 5, 1986. After Gwin's inaction for almost a year, the district court set February 4, 1987, as the date for a hearing on the dismissal of the action. It is not disputed that the court clerk sent the notice of the hearing to an address corresponding to Gwin's address, except for the last digit of the zip code. For purposes of this decision, we may assume that Gwin did not receive the notice of the hearing sent by the court clerk.

Nevertheless, the notice of the hearing did reach the defendants. The defendants then submitted an affidavit (the "Hearing Affidavit") in support of the dismissal, which affidavit clearly stated the date and time the hearing would take place. The defendants served the Hearing Affidavit by mail to Gwin's counsel. It is not disputed that this mailing was properly addressed. See Excerpt of Record tab 7; see also Appellant's Opening Brief at 5.

After considering the mailing of the Hearing Affidavit, we conclude the district court did not abuse its discretion in denying the Rule 60(b) motion.

When a document is properly stamped, addressed, and placed in the mails, a presumption arises that the document will be received in due course. NLRB v. Local 30, Int'l Longshoremen's Assoc., 549 F.2d 698, 701 (9th Cir. 1977). To rebut the presumption that she received the Hearing Affidavit, Gwin's counsel submitted an affidavit to the effect that she did not receive the Hearing Affidavit. As the district court noted, however, the post office did not return the Hearing Affidavit to the defendants as undelivered mail. Additionally, in opposing the Rule 60(b) (6) motion, the defendants submitted a declaration by defense counsel's secretary that Gwin's counsel spoke with her prior to the February 4, 1987 hearing to request that the hearing be postponed. We recognize, of course, that Gwin's counsel denies this conversation ever occurred.

The district court did not believe Gwin's counsel's statements. Therefore, the presumption that the Hearing Affidavit reached Gwin's counsel was not rebutted by credible evidence. The district court was justified in concluding that Gwin had failed to establish a reason for failing to attend the hearing on the dismissal of her action, and consequently for failing to be on notice of the resulting judgment. Accordingly, the court did not abuse its discretion when it concluded that Gwin did not establish the extraordinary circumstances necessary to obtain Rule 60(b) (6) relief.

Gwin argues that in spite of the conflicting evidence, she is entitled to relief under Rule 60(b) (6), because that provision is remedial and must be liberally construed to resolve all evidentiary doubts in her favor. We disagree. We have held that the very requirement of a showing of "extraordinary circumstances" contradicts that liberal approach. Corex, 638 F.2d at 121; see also United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265, 1275 (9th Cir. 1985) (Wallace, J., concurring in part and dissenting in part) (" [u]nlike the rest of Rule 60(b), subdivision (6) is construed harshly against the movant.").

Gwin's remaining arguments are without merit. Gwin argues that the district court did not review all the relevant evidence submitted for the hearing on the Rule 60(b) (6) motion. We do not think the court had to name all the documents submitted by Gwin for its consideration, especially when the documents the court did mention conveyed Gwin's main contention, i.e., that she failed to receive notice of the hearing. Contrary to Gwin's suggestions, we see no abuse in discretion in the district court's denial of Gwin's request for oral argument.

AFFIRMED.