Unpublished Disposition, 904 F.2d 40 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 904 F.2d 40 (9th Cir. 1990)

Malcolm EVANS, Valerie Fisher, Plaintiffs-Appellants,v.BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION;First Vallley Bank; Timothy J. O'Healy; Richard Quigley;Frank B. Todd; Lucien Escallier; Ronald Kindschi; RichardCandland; Timothy Gamble; William O. Gamble, Defendants-Appellees.

No. 88-6506.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 1990.Decided May 31, 1990.

Before REINHARDT, LEAVY and RYMER, Circuit Judges.


Malcolm Evans and Valerie Fisher appeal the district court's summary judgment on their RICO claim and dismissal of pendent claims.1  We affirm.

The first issue on appeal is whether the district court properly invoked the doctrine of judicial estoppel in granting Escallier's Motion for Summary Judgment. The doctrine of judicial estoppel "precludes a party from asserting a position in a current legal proceeding which is contrary to the position that party previously asserted in another." Stevens Technical Services, Inc. v. SS Brooklyn, 885 F.2d 584, 588 (9th Cir. 1989). See also, Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990).

Evans and Fisher consistently maintained that their RICO claim was insubstantial, and that they wanted to dismiss this claim with prejudice, so that their pendent state claims could be dismissed without prejudice and could thereafter be pursued in state court. They repeated the same representation to this court on appeal of the district court's denial of their Rule 60 motion.2  This representation was such as to influence the course of proceedings in both courts. Further, the record indicates that the district court in part based its decision to grant appellants' Motion to Vacate on their representation that they were going to dismiss the RICO claim with prejudice. Therefore, judicial estoppel was properly invoked.

Appellants also object to the form of Summary Judgment and Judgment of Dismissal. They request that we either amend the judgment to provide that it is without prejudice, or reverse and remand to the district court with instructions to amend its order to like effect. The district court granted summary judgment as to the RICO claims and dismissed the pendent claims 'without prejudice.' Even had the express 'without prejudice' language not been included in the court's orders and judgment, Rule 41 provides: "Unless otherwise specified in the order, a dismissal ... is without prejudice." Fed. R. Civ. P. 41(a) (2). Thus, appellants' objection is wholly without merit.



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


The district court granted a motion for summary judgment by Bank of America, Richard Quigley, Frank Todd, Timothy Gamble and William Gamble under Local Rule 7.6 of the Central District of California, deeming Evans and Fisher's lack of opposition to be consent to granting of the motion. Appellant's argument that this was improper is effectively mooted, as the court considered their opposition in identical form on the merits before entering judgment on a similar motion by Lucien Escallier


The district court's denial of appellants' Rule 60 motion was reversed in an unpublished opinion and judgment filed September 29, 1987. We held that extraordinary circumstances existed in this case to justify Rule 60(b) (6) relief. The extraordinary circumstances resulted from the appellants' former attorney's stipulation to dismiss this action with prejudice in federal court, under the apparent belief that this litigation subsequently could be pursued in state court. The stipulation was entered on his "own initiative without consent" from appellants. Subsequently, appellees moved to dismiss the state court action on grounds of res judicata based upon the dismissal of the federal action. We held that counsel's stipulation to dismiss the federal action, without authority, was an extraordinary circumstance justifying Rule 60(b) (6) relief. This unauthorized stipulation is not relevant to the judicial estoppel issue presented in this appeal