WENDALL KABUTAN V. PIONEER HI-BRED INTERNATIONAL, No. 16-16838 (9th Cir. 2017)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED AUG 17 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT WENDALL KABUTAN; WANDA NALANI KABUTAN, Plaintiffs-Appellants, v. U.S. COURT OF APPEALS No. 16-16838 D.C. Nos. 1:12-cv-00231-LEKBMK, 1:12-cv-00655-LEK-BMK MEMORANDUM* PIONEER HI-BRED INTERNATIONAL, a DuPont Business and Iowa Corporation; et al., Defendants-Appellees. Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding Submitted August 9, 2017** Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges. Wendall and Wanda Kabutan appeal pro se from the district court’s order denying their Federal Rule of Civil Procedure 60(b) motion for relief from judgment in this consolidated diversity action. We have jurisdiction under 28 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). U.S.C. § 1291. We review for an abuse of discretion, Harvest v. Castro, 531 F.3d 737, 741 (9th Cir. 2008), and we affirm. The district court did not abuse its discretion by denying the Kabutans’ Rule 60(b) motion because the Kabutans failed to demonstrate any grounds for relief. See id. at 745-49 (setting forth grounds for reconsideration under Rule 60(b)). In their opening brief, the Kabutans fail to challenge the district court’s dismissal of the action for failure to prosecute, and therefore they waived any such challenge. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not consider any claims that were not actually argued in appellant’s opening brief.”). The Kabutans’ request that certain exhibits filed in the district court be unsealed, set forth in the opening brief, is denied. AFFIRMED. 2 16-16838

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