Jerry Simon, Donna Simon; Herman Amaral; Rose Amaral; Roybanogli; Mickey Banogli; Robert Kittle; Linda Kittle;clement Butler; Donna Butler; Raymond Edlehuber; Joyceedlehuber; Phil Pecoraro; Colleen Pecoraro; Davidfujikawa; George Fujikawa; Daniel Lawrence; Caroleelawrence; Harold Berton; Sharon Berton, Plaintiffs-appellees, v. Neil A. Orsi, Defendant-appellant, 981 F.2d 1259 (9th Cir. 1992)
Annotate this CaseBefore SCHROEDER, FLETCHER and NOONAN, Circuit Judges.
MEMORANDUM**
Neil A. Orsi appeals the district court's denial of his Fed. R. Civ. P. 60(b) motion to set aside the court's summary judgment for plaintiffs Jerry Simon and others in plaintiffs' securities fraud action against Orsi for certain misrepresentations made in connection with the sale of investments to plaintiffs. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review a denial of a Rule 60(b) motion for an abuse of discretion, and we will reverse "only upon a clear showing of abuse of discretion." Pena v. Seguros La Commercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985).
Orsi contends that the district court erred by denying his Rule 60(b) motion because he did not have notice of the plaintiffs' renewed summary judgment motion. This contention lacks merit.
Plaintiffs filed the present action on September 4, 1987. On February 20, 1990, plaintiffs filed a motion for summary judgment, and a hearing on the matter was set for April 6, 1990. Orsi was properly served with the summary judgment motion, but filed no response. Instead, on March 29, 1990, Orsi filed a Chapter 7 petition in bankruptcy court. On September 21, 1990, plaintiffs were granted relief from the automatic stay provisions of the bankruptcy proceedings to pursue their pending summary judgment motion. On October 25, 1990, plaintiffs renewed their summary judgment motion in district court.
On this record it is clear that Orsi had notice of plaintiffs intent to pursue summary judgment, and Orsi's claim to the contrary is meritless. Accordingly, the district court did not abuse its discretion by denying Orsi's Rule 60(b) motion. See Pena 770 F.2d at 814-15.
AFFIRMED.
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