Unpublished Disposition, 927 F.2d 610 (9th Cir. 1991)

MEMORANDUM^** 

Plaintiff-Appellant Sassoon Sales appeals the district court's denial of his motion for relief from costs assessed against him and for leave to file late objections to the bill of costs filed by Defendant-Appellee Bankers United Life Assurance Company (Bankers). Sales contends that the district court abused its discretion by failing to grant relief under Federal Rule of Civil Procedure 60(b) (1). We affirm.

* Sales sued Bankers for insurance bad faith. On June 2, 1989, the district court granted Bankers's motion for directed verdict, dismissed the action, and awarded costs to Bankers. Bankers timely filed and served a bill of costs. For the purpose of this appeal, we will assume that Sales's version of subsequent events is true.

Sales received a bill of costs dated June 19, 1989, but because it did not indicate the date and time of the hearing before the court clerk, Sales did not file objections. On August 3, 1989, Sales received a letter from Bankers stating that a hearing on the bill of costs was held on July 5, 1989 and, because Sales failed to appear, Bankers was awarded the entire bill of costs totaling $1,594. When Sales contacted Bankers and stated that he had not received notice of the hearing, Bankers sent Sales a copy of a document titled Amended Proof of Service of Bill of Costs. The clerk's docket indicates that this document, which shows that the hearing was set for July 5, was mailed to Sales in June. Sales says he never saw it until August 9, when he received the copy sent by Bankers.¹  Excerpts of Record 12-13.

On October 5, 1989, Sales filed a motion under Fed. R. Civ. P. 60(b) for leave to file late objections to the bill of costs. The district court denied this motion on October 30, 1989.

II

Rule 60(b) allows a district court to grant relief from a final order or judgment on the basis of mistake, inadvertence, surprise or excusable neglect. Sales argues that the district court should have granted his motion for leave to file late objections. A district court's decision to deny a motion under Rule 60(b) is reviewed for abuse of discretion. Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989). A reversal is required only upon a clear showing of such abuse. Id.

In determining whether to grant relief under Rule 60(b), courts should consider whether the party seeking relief has exercised due diligence. See Rodgers v. Watt, 722 F.2d 456 (9th Cir. 1983) (en banc); Stevens v. ITT Systems, Inc., 868 F.2d 1040 (9th Cir. 1988).

We do not believe that the circumstances, as described by Sales, compel that conclusion that he was duly diligent. After the district court awarded costs to Bankers, it is reasonable to expect Sales to know or research the procedure by which costs are taxed. In the Central District of California, Local Rule 16 sets out the procedure. Once the bill of costs is filed, it is the clerk's responsibility to set a hearing date to tax costs. When Sales received the bill of costs, he knew or should have known that the clerk might set a hearing as early as July 5. Even if Sales did not receive actual notice that the hearing was scheduled, he was on notice that a hearing would be set and should have called the clerk. In these circumstances, we cannot say that the district court abused its discretion in denying Sales' motion for relief under Rule 60(b).

III

Bankers requests sanctions against Sales for filing this appeal. This court has the discretion to impose sanctions for frivolous appeals under Federal Rule of Appellate Procedure 38. An appeal is frivolous where the results are obvious or the argument of error is wholly without merit. Amwest Mort. Corp. v. Grady, No. 89-55388, slip op. 1687, 1694 (9th Cir. Feb. 11, 1991). We do not find Sales's contentions wholly without merit or the results obvious. Thus, we deny Banker's request for sanctions.

AFFIRMED.