Unpublished Disposition, 867 F.2d 612 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 867 F.2d 612 (9th Cir. 1987)

Doris CARROLL, Plaintiff-Appellant,v.MOTOROLA, INC., Diane Kee and Jo Anne Dees, Defendants-Appellees.

No. 87-2532.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 16, 1988.* Decided Jan. 25, 1989.

Before FLETCHER, PREGERSON and CANBY, Circuit Judges.


MEMORANDUM** 

Doris Carroll appeals the district court's order denying her motion for reconsideration of the dismissal of her action for employment discrimination and wrongful termination against Motorola, Inc., Diane Kee, and Jo Anne Dees ("Motorola"). Carroll contends that Motorola's unfairness in terminating her employment justifies the reopening of her case. She also contends that she signed an agreement releasing her claims without knowing that its terms had been unilaterally altered by Motorola, and that it is therefore unfair to prevent her from further pursuing her claim. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

* Carroll filed a complaint in district court against Motorola, charging that she had been wrongfully terminated in retaliation for pursuing a race discrimination claim. During the settlement negotiations regarding her suit, Carroll was represented by Mr. Charles Santaguida. The parties agreed to a settlement in which Carroll was to be paid $5,000 in return for her abandoning all her claims against Motorola. Carroll signed the settlement agreement and stipulation for dismissal with prejudice on May 5, 1987. The court entered an order dismissing the case with prejudice on May 23, 1987.

On May 7, 1987, Mr. Santaguida wrote a letter to Carroll informing her that the settlement agreement she had signed contained different terms from those agreed to during the settlement negotiations. Specifically, he stated that the draft agreement paid Carroll $5,000 as settlement for her claims, but the final agreement provided that the settlement was paid for back wages, as well as settlement of her claims; accordingly, the amount Carroll received under the settlement could be taxable income. The attorney also stated that Carroll had not wanted to wait for him to review the final agreement and stipulation before signing them, and that she had been adequately warned by his office that "we" did not feel that the agreement adequately addressed all of her interests because tax consequences attended the recital that the settlement was paid for back wages. He concluded however that, since Carroll had signed the agreement and stipulation and had taken the check, he was compelled to file the stipulation to dismiss the case with prejudice.

II

Where a party voluntarily consents to a dismissal, a court may set aside the dismissal order under Fed. R. Civ. P. 60(b) only if the party's agreement to dismiss the case was the result of a justifiable mistake, neglect, or fraud; newly discovered evidence justifies the reopening of the case; or extraordinary circumstances justify the reopening of the case in order to accomplish justice. See Fed. R. Civ. P. 60(b); United States v. Sparks, 685 F.2d 1128, 1130 (9th Cir. 1982). In her motion, Carroll did not make any effort to satisfy any of these bases for setting aside a dismissal order under Fed. R. Civ. P. 60(b). Carroll argued only that Motorola's termination of her employment was unfair and that she was suffering hardship as a result. The district court was therefore acting within its discretion in denying her motion. See Thompson v. Housing Authority of the City of Los Angeles, 782 F.2d 829, 832 (9th Cir. 1986) (district court's decision denying a Rule 60(b) motion for relief from a judgment is reviewed for an abuse of discretion).

III

In her brief before this court, Carroll argues that she should be allowed to revive her complaint because the release she signed was not adequately explained to her. We cannot address this argument because it was not presented in Carroll's motion to reconsider before the district court.

We will consider an issue for the first time on appeal if extraordinary circumstances prevented the issue from being raised below and review is necessary to avoid manifest injustice. International Union of Bricklayers & Allied Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985). Carroll fails to satisfy this test. The facts available do not indicate that our refusal to reopen the case would be a manifest injustice. Carroll's attorney stated that Carroll was informed that there were problems with the agreement before she signed it. Further, Carroll has offered no explanation for her failure to argue below that the release was not adequately explained to her. This argument is therefore not properly before this court.

AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit Rule 36-3