Unpublished Disposition, 937 F.2d 611 (9th Cir. 1990)

MEMORANDUM^* 

The district court did not expressly direct the entry of a judgment denying the motion to vacate the partial summary judgment until July 20, 1990. The appeal, which was filed on April 16, 1990, is therefore timely. See Vernon v. Heckler, 811 F.2d 1274, 1276 (9th Cir. 1987). Denial of a motion to vacate is a final appealable order. Plotkin v. Pacific Tel. and Tel. Co., 688 F.2d 1291, 1292 (9th Cir. 1982). We have jurisdiction under 28 U.S.C. § 1291.

We review a denial of Rule 60(b), Fed. R. Civ. P., motion for abuse of discretion. Meadows v. Dominican Republic, 817 F.2d 517, 521 (9th Cir.), cert. denied, 484 U.S. 976 (1987). The motion to vacate was brought under both Rule 60(b) (1) and Rule 60(b) (6).

Although default judgments are not favored, a district court has the discretion to deny a Rule 60(b) (1) motion if "(1) the [party's] culpable conduct led to the default, (2) the defendant has no meritorious defense, or (3) the plaintiff would be prejudiced if the judgment is set aside." Id. Finally, if culpable conduct is shown, the district court need not consider the second or third factors. Id.

A party's conduct is culpable if it "has received actual or constructive notice of the filing of the action and failed to answer." Id. There is no dispute that counsel for Minelli and Balboa Insurance Company (Balboa) received notice of the summary judgment motion. Minelli also admits receiving notice of the motion approximately two months before entry of the final amended order granting summary judgment.

The record is sufficient to establish culpable conduct on behalf of Minelli and Balboa. The district court was therefore not required to determine whether Minelli and Balboa had a meritorious defense to the partial summary judgment motion or whether Bluegrass would be prejudiced if the motion to vacate was granted. The district court did not abuse its discretion in denying the Rule 60(b) (1) motion.

To justify relief from judgment under Rule 60(b) (6) Minelli and Balboa would have had to demonstrate "extraordinary circumstances" to the district court. See Straw v. Bowen, 866 F.2d 1167, 1172 (9th Cir. 1989). There is nothing in the record to establish the type of "extraordinary circumstances" that would have justified vacating the partial summary judgment. The district court did not abuse its discretion in denying the Rule 60(b) (6) motion.

As a prevailing party on this appeal, Bluegrass is entitled to attorneys' fees. See Dillig v. Fisher, 142 Ariz. 47, 688 P.2d 693, 697 (App.1984). However, Bluegrass is only entitled to fees against Minelli. Its action against Balboa Insurance Company is based on the Miller Act which does not provide for an award of attorneys' fees. See F.D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 126-131 (1974). Bluegrass is instructed to file a request for attorneys' fees pursuant to Ninth Circuit Rule 39-1.6. Each party shall bear its own costs.

AFFIRMED.