Unpublished Disposition, 912 F.2d 468 (9th Cir. 1990)

MEMORANDUM^** 

Gerald Bateson appeals from the district court's order granting a motion under Fed. R. Civ. P. 60(b) to set aside a stipulation. We affirm.

Bateson brought a successful civil rights action under 42 U.S.C. § 1983 against the City of Billings, Montana and individual city council members (collectively the "City"). The trial court, sitting without a jury, awarded Bateson $419,340.25, including costs and attorneys' fees. The City moved for a stay of execution of judgment pending appeal. The district court granted the stay of execution of judgment on the condition that the City deposit roughly $475,015 with the Clerk of Court to cover the judgment and two years of interest. We affirmed the district court's judgment. Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988).

The Clerk placed the funds paid by the City in an interest-bearing certificate of deposit pending appeal. After we issued our mandate, the parties entered into a stipulation in which Bateson agreed to file a satisfaction of judgment with the Clerk's office in exchange for the receipt of money held by the Clerk's office. Pursuant to the stipulation, the district court ordered in November of 1988 that " [u]pon maturity, the funds being the total principal and all accrued interest currently held by the Clerk of this Court in a certificate of deposit be paid over by the Clerk's check made payable to Gerald Bateson and his attorneys." Bateson received approximately $527,105.

In April of 1989, the City moved to set aside the stipulation under Fed. R. Civ. P. 60(b) because it had made a mistake. The City contended that when it entered the stipulation, it forgot that the district court ordered the City to deposit two years of interest in addition to the judgment. The City argued that Bateson was only entitled to receive $471,511.19, the judgment amount plus statutory interest. The district court granted the City's Rule 60(b) motion and set aside the parties' stipulation.

Bateson makes two arguments on appeal. First, he asserts that the district court was divested of jurisdiction to entertain the City's Rule 60(b) motion when the City appealed and we affirmed. Second, Bateson argues that even if the district court had jurisdiction, it abused its discretion when it set aside the parties' stipulation. We reject both arguments.

The district court had jurisdiction over the City's Rule 60(b) motion. In Standard Oil Co. of California v. United States, 429 U.S. 17 (1976) (per curiam), the Supreme Court held that a district court may entertain Rule 60(b) motions, without leave from an appellate court, after an appellate court has affirmed the district court's judgment. See also Gould v. Mutual Life Insurance Co. of New York, 790 F.2d 769, 772-3 (9th Cir.), cert. denied, 479 U.S. 987 (1986) (a district court has jurisdiction to consider Rule 60(b) motions without leave from an appellate court after the district court's original judgment has been affirmed on appeal). The district court in this case therefore properly exercised jurisdiction over the City's Rule 60(b) motion.

We review the district court's decision to grant the City's Rule 60(b) motion only for abuse of discretion. Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985); see also Cole v. Fairview Development, Inc., 226 F.2d 175, 176 (9th Cir. 1955), cert. denied, 350 U.S. 995 (1956) (refusal to set aside a stipulation under Rule 60(b) is within the discretion of the district court). Here, the district court found that the City made a mistake when it stipulated to the disbursement of funds in the registry of the court. The district court concluded that the City only intended to stipulate to the release of the amount of judgment plus statutory interest under 28 U.S.C. § 1961. Despite the wording of the stipulation, the district court rejected Bateson's contention that the parties had agreed to allow Bateson to recover interest on both the original judgment and the two years of pre-paid interest.

We do not believe that the district court abused its discretion when it modified its order based on the inadvertence of the City's counsel. We realize that other courts have refused to set aside stipulations in similar cases because it would not be "unreasonable to require defendant's attorney to have anticipated the ... issue at the time of the ... stipulation." Fisher v. First Stamford Bank and Trust Co., 751 F.2d 519, 524 (2d Cir. 1984); see also United States v. Medlin, 767 F.2d 1104, 1108-9 (5th Cir. 1985) (court would not set aside stipulation which the United States had inadvertently entered but would instead hold both parties to the benefits and the burdens of the stipulation). Upon a de novo review, we may have come to a different conclusion than the trial court in this case. But our review here is rather limited. We examine only whether the district court abused its discretion. We conclude that the district court's decision in this case complied with Rule 60(b), and we do not believe that the district court abused its discretion.

We have explained that a "district court's decision to relieve a party from a stipulation will not be reversed when the party has entered into it by inadvertence and the opposing party would not be prejudiced (i.e., treated unfairly) by setting the agreement aside." United States v. McGregor, 529 F.2d 928, 931-2 (9th Cir. 1976). Here, the district court found that the City entered into the stipulation inadvertently. Because Bateson's interests were fully satisfied by the district court's judgment plus statutory interest, Bateson was not treated unfairly by the district court's decision to set aside the stipulation and to require Bateson to pay back the extra interest he received.

Both parties seek attorneys' fees on appeal under 42 U.S.C. § 1988. We deny Bateson attorneys' fees because he does not prevail, and we deny the City attorneys' fees because Bateson's claim was not "frivolous, unreasonable or without foundation." See United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 647 (9th Cir.), cert. denied, 479 U.S. 1009 (1986).

AFFIRMED.