Unpublished Disposition, 849 F.2d 1475 (9th Cir. 1988)

MEMORANDUM^** 

In this appeal we consider whether the district court abused its discretion in denying appellant's 60(b) motion. The appellant alleged that her attorney (1) committed a fraud on the court, (2) was grossly negligent in handling her case, and (3) consented to judgment without her authority. The court held that the allegations did not support post-judgment relief. We affirm.

Background

Bosch filed this action against Olympia in May 1984, alleging copyright infringement, breach of implied contract, and misappropriation.¹  Following a pretrial conference, the court stopped further discovery until Olympia moved for summary judgment. Olympia so moved in January 1986. Bosch's counsel did not file a written response but he did appear at the motion hearing and contested the motion. The court granted Olympia's motion and its request for costs and attorney fees. Bosch, appearing pro se, moved to vacate the judgment, which the district court denied. Bosch timely appealed.

The appellant's allegations do not support post-judgment relief. Rule 60(b) consists of six sections. Three and six apply here. Fed. R. Civ. P. 60(b) (1)-(6).

Fraud

Section three permits a district court to set aside judgments for fraud, misrepresentation, or other misconduct. Id.² 

Although the rule specifically addresses only the misconduct of adverse parties, decisions have expanded the rule's scope to include situations where an attorney fraudulently "assumes to represent a party and connives at his defeat." See Luttrell v. United States, 644 F.2d 1274, 1276 (9th Cir. 1980). A party moving for post-judgment relief for fraud must support her motion with evidence of "an unconscionable plan or scheme which is designed to improperly influence the court in its decision." England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960). The fraud must be established by clear and convincing proof. LaFarge Conseils Et Etudes, S.A. v. Kaiser Cement, 791 F.2d 1334, 1338 (9th Cir. 1986).

Bosch's allegation that her attorney failed to respond in writing to Olympia's motion for summary judgment and failed to properly inform her of the status of her case does not establish fraud. Such conclusory allegations are insufficient to support a motion for post-judgment relief. See Bunch v. United States, 680 F.2d 1271, 1283 (9th Cir. 1982); Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981), cert. denied, 455 U.S. 942 (1982).³ 

Gross Negligence

Next, section six permits setting aside judgments if motion is supported by evidence of extraordinary circumstances. LaFarge Conseils Et Etudes, S.A. v. Kaiser Cement, 791 F.2d 1334, 1338 (9th Cir. 1986).

Bosch alleges her attorney negligently failed (1) to move for default judgment, (2) to remove her former spouse's name from the action, (3) to file a memorandum opposing the summary judgment motion, and (4) to adequately inform Bosch of the status of her case. An attorney's failure to take certain actions, whether intentional or through gross negligence, is insufficient to overturn a district court denial of post-judgment relief under Fed. R. Civ. P. 60(b) (6). See Schanen v. Department of Justice, 762 F.2d 805, 807 (9th Cir. 1985), reaffirmed and modified, 798 F.2d 348 (1986); cf. Link v. Wabash R.R., 370 U.S. 626, 633-34 (1962) (court upholds dismissal for lack of prosecution arising from attorney's failure to appear for pretrial conference); Smith v. Stone, 308 F.2d 15 (9th Cir. 1962) (attorney's failure to file memoranda opposing motions for dismissal and summary judgment does not constitute excusable neglect under Fed. R. Civ. P. 60(b) (1)).⁴ 

Consent to Judgment

Bosch's attorney acted within his authority. Settlement agreements entered into without authority of the client may be voided by motion to vacate. See Surety Ins. Co. v. Williams, 729 F.2d 581, 582 (8th Cir. 1984). However, an agreement with opposing counsel concerning the manner in which a case should proceed does not constitute a consent to judgment and is normally not outside of an attorney's authority. Cf. Model Code of Professional Responsibility DR 7-101(A) (1) (1980) (attorney does not fail to zealously represent a client by acceding to the reasonable requests of opposing counsel). Thus, Bosch's attorney's agreement to refrain from further discovery until Olympia moved for summary judgment was within his authority.

The court did not abuse its discretion in denying the motion to vacate.

Sanctions

Olympia asks for fees and costs in defending this appeal.

This court has discretion to award attorney fees and costs as a sanction for the filing of a frivolous appeal. DeWitt v. Western Pac. R.R., 719 F.2d 1448, 1451 (9th Cir. 1983); Fed. R. App. P. 38. An appeal is frivolous if the result is obvious or the arguments in support of the appeal are wholly without merit. DeWitt, 719 F.2d at 1451.

The record below includes overwhelming evidence that Bosch's claims of copyright infringement are baseless. Her attempt to resurrect the action by attacking her attorney's performance is wholly without merit, and has caused appellee to incur further fees and costs. Its request for attorney fees on appeal is granted. Ninth Circuit Rule 39-1.6.

AFFIRMED.