Unpublished Disposition, 935 F.2d 274 (9th Cir. 1991)

No. 90-55103.

United States Court of Appeals, Ninth Circuit.

Before KOZINSKI and O'SCANNLAIN, Circuit Judges, and McNAMEE,^**  District Judge.

MEMORANDUM^*** 

In February 1988, Appellant Harrington filed a ten-count complaint against Appellee Wellcraft Marine Corporation ("Wellcraft") asserting federal antitrust and various state tort claims arising out of disputes over his retail boat business ("Captain's Locker") located in Nevada. Wellcraft filed a motion to dismiss based on the grounds that the court lacked personal jurisdiction over Wellcraft, that Harrington's complaint failed to state claims upon which relief could be granted, and that Harrington's claims were barred by the applicable California statutes of limitations.¹  After converting the motion to dismiss into a motion for summary judgment, the district court determined, among other things, that Harrington's tort claims were barred by the statute of limitations and granted judgment in favor of Wellcraft.

Harrington filed a Rule 60(b) motion to vacate or modify the district court's entry of judgment, arguing that California's equitable tolling doctrine should apply to save his tort claims. Harrington's Rule 60(b) motion was denied. The only issue on appeal is the district court's denial of Harrington's Rule 60(b) motion. The final judgment is not on appeal.

* In order to prevail, Harrington must show that the district court abused its discretion in denying the relief requested in his Rule 60(b) motion. Whale v. United States, 792 F.2d 951 (9th Cir. 1986); Martella v. Marine Cooks & Stewards Union, Seafarers Int'l Union of North America, AFL-CIO, 448 F.2d 729, 730 (9th Cir. 1971), cert. denied, 405 U.S. 974 (1972). Further, Harrington must demonstrate "extraordinary circumstances" or "excusable neglect" which prevented him from timely appealing the district court's final judgment. Martella, 448 F.2d at 730. Gross carelessness is not enough. Smith v. Stone, 308 F.2d 15, 17 (9th Cir. 1962).

Harrington's Rule 60(b) motion asserts that the district court's grant of summary judgment on the state tort claims was incorrect because California's equitable tolling doctrine should apply to save his claims. Under California law a party is entitled to relief from a statute of limitations bar if he satisfies a three-part test:

1) defendant must have had timely notice of the claim;

2) defendant must not be prejudiced by having to defend the otherwise barred claim;

3) plaintiff's conduct must have been reasonable and in good faith.

Bacon v. City of Los Angeles, 843 F.2d 372 (9th Cir. 1988). In support of his argument Harrington argued that Wellcraft had timely notice of his state tort claims and that his conduct was reasonable and in good faith.

An exhibit to Harrington's Rule 60(b) motion was a complaint and answer filed by Wellcraft in the prior bankruptcy proceeding. Harrington argues that these documents reveal Wellcraft's knowledge of the state tort claims. While the district court found that Harrington's motion presented new evidence²  regarding Wellcraft's timely notice of his bankruptcy counterclaim, Harrington offered no reason why this evidence was not presented earlier. Instead, Harrington merely argued that the trial court's decision was erroneous.

In Smith v. Stone, 308 F.2d 15, 17 (9th Cir. 1962), the plaintiff's counsel failed to appear at a hearing regarding the opposing party's motion for summary judgment and motion to dismiss. Counsel also failed to file any documents opposing these two motions. In affirming the district court's denial of the plaintiff's Rule 60(b) motion this Court stated " [counsel] ... has made ... no showing of inadvertence, excusable neglect, mistake, surprise nor any one or more of them." Id. at 18.

As in Smith, the record is clear that Harrington made no showing of inadvertence, excusable neglect or mistake; rather, Harrington argued that the district court's grant of summary judgment was simply mistaken. Thus, Harrington did not show why he was justified in failing to avoid his mistake or inadvertence.

Furthermore, during the prior bankruptcy proceedings, Harrington made certain statements regarding the date the sale of his business collapsed. In the complaint filed in the instant case the district court held, and this court agrees, that the date was a judicial admission and Harrington was, therefore, a bad faith litigant for asserting new dates in his district court complaint.

II

The trial court did not abuse its discretion in denying Harrington's Rule 60(b) (1) and (6) motion. The record supports the findings that Harrington offered no justifiable excuse for failing to submit his evidence and that he was a bad faith litigant.

AFFIRMED.