Unpublished Disposition, 886 F.2d 334 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 886 F.2d 334 (9th Cir. 1987)

Gregory CAREY, Plaintiff-Appellant,v.IUOE, LOCAL 370, Defendant-Appellee.

No. 87-4369.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 12, 1989.* Decided Sept. 20, 1989.

Robert J. McNichols, District Judge, Presiding.

Before BROWNING, ALARCON, CYNTHIA HOLCOMB HALL, Circuit Judges.


MEMORANDUM** 

Gregory Carey appeals from the judgment of the district court dismissing his independent action brought pursuant to Federal Rule of Civil Procedure 60(b) to set aside an adverse judgment rendered in 1983. We affirm.

On April 16, 1980, Carey filed a civil rights action against the International Union of Operating Engineers. The Union filed a motion for summary judgment on April 19, 1982. Carey requested an extension of time to respond which was granted. Thereafter, Carey failed to appear on the date set for the hearing on the summary judgment motion and failed to respond to the motion. The district court sua sponte reset the hearing date for September 13, 1982. In the order rescheduling the hearing date the district court warned Carey that if he failed to appear again the court would issue a ruling without a hearing. Carey failed to appear for the September 13, 1982 hearing and the district court granted the Union's motion for summary judgment on September 27, 1982. Carey filed an untimely notice of appeal.

We dismissed the appeal on February 8, 1983. On November 9, 1987, Carey filed an "independent action for a Civil Rights Complaint" pursuant to Federal Rule of Civil Procedure 60(b) (6). The district court treated Carey's action as a motion pursuant to Rule 60(b) (6) and alternatively as an independent action pursuant to Rule 60(b). The district court denied Carey any relief stating:

(1) To the extent that the plaintiff seeks to re-open the file in C-80-125 under Rule 60(b) (6), the motion is DENIED.

(2) To the extent that plaintiff seeks to file an independent action attacking the judgment in C-80-125, the motion is GRANTED and the Clerk shall open a new case under a separate docket number.

(3) It appearing that the independent action is wholly without merit in light of the authorities cited above, the action is DISMISSED with prejudice.

Carey filed a timely notice of appeal.

DISCUSSION

Carey contends that the district court abused its discretion in dismissing his independent action under Federal Rule of Civil Procedure 60(b). We review the district court's decision to dismiss Carey's independent action pursuant to Federal Rule of Civil Procedure 60(b) for an abuse of discretion. Fiester v. Turner, 783 F.2d 1474, 1476 (9th Cir. 1986).

Federal Rule of Civil Procedure 60(b) (6) provides:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:

.............................................................

...................

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(6) any other reason justifying relief from the operation of the judgment.

Rule 60(b) further provides:

This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., Sec. 1655, or to set aside a judgment for fraud upon the court.

Carey has styled his action as an "independent action" under Rule 60(b) (6). We have held that relief under Rule 60(b) (6) is only granted where a party can establish "extraordinary circumstances" warranting relief. Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981). Moreover, as one commentator has explained:

Resort to an independent action may be had only rarely, and then only under unusual and exceptional circumstances. It is not the function of an independent action to relitigate issues finally determined in another action between the same parties. It is not a remedy for inadvertence or oversight by the losing party in the original action, nor will it lie on behalf of a party who was himself at fault.

11 Wright & Miller, Federal Practice and Procedure Sec. 2868 (1973) (footnotes omitted).

In the instant matter, Carey has failed to set forth any circumstances justifying relief from the judgment, let alone "extraordinary circumstances." Instead, Carey argues that he stated valid claims in his original complaint that should have been presented to the trier of fact. In short, Carey merely seeks to relitigate the underlying action. The district court did not abuse its discretion in dismissing Carey's independent action pursuant to Rule 60(b). The judgment of the district court is AFFIRMED.

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The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3