Unpublished Disposition, 884 F.2d 1394 (9th Cir. 1988)

MEMORANDUM^* 

Appellant John Breitner brought an action in federal district court seeking a declaratory judgment to have a sublease between him and appellees Frank Duimich, Ann Duimich, Elliot Crosby, Marsha Crosby, Charles Carrol and Darlene Carrol (collectively "Duimich") declared null and void or expired by its own terms. Duimich moved to dismiss. The district court concluded that a settlement agreement and dismissal in a previous suit had established the validity of the sublease. Upon review of the sublease, the district court found that it had not expired, and granted the motion to dismiss, treating it as a motion for summary judgment. Approximately six months later, Breitner moved for relief from judgment under F.R.Civ.P. 60(b). The motion was denied without a hearing. Breitner appeals this decision, alleging that the court abused its discretion in refusing to grant relief from judgment on the grounds of mistake, newly discovered evidence, and inequitable results. Duimich argues that this appeal is frivolous and asks for attorney's fees.

STANDARD OF REVIEW

"Motions for relief under Fed. R. Civ. P. Rule 60(b) are addressed to the sound discretion of the trial court; accordingly, the standard of review is abuse of discretion." Thompson v. Housing Auth. of City of Los Angeles, 782 F.2d 829, 832 (9th Cir.), (citations omitted), cert. denied, 479 U.S. 829 (1986).

DISCUSSION

Rule 60(b) (1) claim

Breitner contends that the district court's dismissal was based in part on its mistaken beliefs that: 1) his state action for declaratory judgment had been dismissed with prejudice; and 2) the settlement agreement resulting from this action denied Breitner any right to challenge the validity of the sublease or establish breaches of the sublease by Duimich. Duimich contends, however, that Breitner's 60(b) (1) claim is untimely as it was not brought within the time for appeal. We agree.

Fed. R. Civ. P. 60(b) provides that a 60(b) (1) motion must be made within one year after judgment. We have further restricted the limitation period under certain circumstances. In Plotkin v. Pacific Tel. and Tel., 688 F.2d 1291 (9th Cir. 1982), we affirmed the denial of a 60(b) motion which was brought 48 days after judgment. Our rationale was that a party should not be allowed to circumvent the appeals process by moving to vacate under Rule 60(b) after having made a deliberate decision not to appeal. Id. at 1293.

Breitner filed his 60(b) motion, which included his 60(b) (1) claim, on April 26, 1988, approximately six months after Duimich's motion to dismiss was entered. Breitner brought his motion well within the one year period allowed by Rule 60(b) (1). However, as was the case in Plotkin, Breitner's motion appears to be an attempt to circumvent the appeals process. Not only does Breitner give no reason for his failure to appeal the alleged mistakes of the court but it appears that he deliberately chose not to appeal these issues. The mistakes Breitner now alleges in his Rule 60(b) (1) motion were discovered by him well within the period for appeal. He concedes that his former counsel informed the court by phone the day after the hearing that no dismissal with prejudice had been entered by the court in Breitner's state court action. He also concedes that after the district court dismissed his suit, he filed a motion to amend judgment under Rule 59(e), again informing the court of the alleged error. This motion was denied on December 10, 1987 and Breitner did not raise this issue again until filing his 60(b) motion on April 26, 1988. For these reasons, we find that Breitner's motion was an attempt to thwart the appeals process. As such, under Plotkin, Breitner's 60(b) (1) motion was untimely.

Rule 60(b) (2) claim

The gravamen of Breitner's 60(b) (2) claim is that evidence discovered during Duimich's subsequent state court action (but after the dismissal of his case) warranted the reopening of his case to allow him to argue that Duimich had breached various conditions of the sublease. Breitner contends that the district court abused its discretion by refusing to allow amendment of the complaint as well as refusing to reopen the judgment once new evidence of breaches had been discovered because the newly discovered evidence would produce a different result.

In Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211 (9th Cir. 1987), we set out three requirements for relief under Rule 60(b) (2): (1) that the evidence is actually newly discovered, i.e., it was discovered following the disposition of the case; (2) that the moving party exercised "due diligence" to discover the evidence; and (3) that the evidence is of such magnitude that production of it earlier would have been likely to change the disposition of the case.

In the present case, the record indicates that Breitner did not pursue discovery prior to dismissal with the due diligence required by Rule 60(b) (2). At the hearing on the motion to dismiss, Breitner recognized that no discovery had yet been conducted and yet agreed to continue in his disadvantaged position. Moreover, with regard to an accounting for proceeds received from Duimich, Breitner noted that Duimich had not responded to his motion for a request for production of documents which was due that morning. He disregarded the delay. His comment was: "I let that go." Given these facts, it is clear that Breitner did not pursue discovery with the requisite due diligence.

Rule 60(b) (6) claim

Clause (6) of Rule 60(b) and the proceeding clauses are mutually exclusive. Corex Corp. v. United States, 638 F.2d 119, 121 (9th Cir. 1981). A Rule 60(b) (6) motion must be brought for some reason other than the first five reasons listed in Rule 60(b). Id. The contentions Breitner makes here duplicate those he makes under Rule 60(b) (1) and (2). Consequently, in light of Corex, the district court did not abuse its discretion in refusing to grant Breitner relief under Rule 60(b) (6).

ATTORNEY'S FEES

This court may award attorney's fees and single or double costs to the prevailing party when an appeal is frivolous. See Fed. R. App. P. 38; 28 U.S.C. § 1912 (1982). An appeal is considered frivolous in this circuit when the result is obvious, or the appellant's arguments of error are wholly without merit. Mackey v. Pioneer Nat. Bank, 867 F.2d 520, 527 (9th Cir. 1989). Breitner's arguments of error, although unpersuasive, are not wholly without merit. Accordingly, we deny Duimich's request for attorney's fees.

AFFIRMED.