Almont Ambulatory Surgery Ctr., LLCv.Int'l Longshore & Warehouse Union

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITJun 11, 2019
No. 16-56241 (9th Cir. Jun. 11, 2019)

No. 16-56241 No. 17-55285

06-11-2019

ALMONT AMBULATORY SURGERY CENTER, LLC, a California limited liability company; CIRO SURGERY CENTER, LLC, a California limited liability company; EAST BAY AMBULATORY SURGERY, LLC, a California limited liability company; MODERN INSTITUTE OF PLASTIC SURGERY & ANTIAGING, INC., a California corporation; NEW LIFE SURGERY CENTER, LLC, DBA Beverly Hills Surgery Center, a California limited liability company; ORANGE GROVE SURGERY CENTER, LLC, a California limited liability company; SAN DIEGO AMBULATORY SURGERY CENTER, LLC, a California limited liability company; WEST HILLS SURGERY CENTER, LLC, a California limited liability company; INDEPENDENT MEDICAL SERVICES, INC., a California corporation; BAKERSFIELD SURGERY INSTITUTE, LLC; VALENCIA AMBULATORY SURGERY CENTER, LLC; PALMDALE AMBULATORY SURGERY CENTER, LLC; PROPERTY CARE INSURANCE, INC.; SAN JOAQUIN VALLEY SURGERY CENTER, LLC; SKIN CANCER & RECONSTRUCTIVE SURGERY SPECIALISTS OF BEVERLY HILLS, INC.; SKIN CANCER & RECONSTRUCTIVE SURGERY SPECIALISTS OF WEST HILLS, INC.; SURGERY CENTER MANGEMENT; TOP SURGEONS, LLC; WOODLAKE AMBULATORY; 1-800-GET-THIN, LLC; CINDY OMIDI; JULIAN OMIDI; MICHAEL OMIDI; VALLEY SURGICAL CENTER, LLC, Plaintiffs-Appellants, v. INTERNATIONAL LONGSHORE AND WAREHOUSE UNION; PACIFIC MARITIME ASSOCIATION; INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION-PACIFIC MARITIME ASSOCIATION WELFARE PLAN; ILWU-PMA COASTWISE INDEMNITY PLAN, Defendants-Appellees.


NOT FOR PUBLICATION

D.C. No. 2:14-cv-02177-MWF-VBK MEMORANDUM Appeal from the United States District Court for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding Submitted May 14, 2019 Seattle, Washington Before: O'SCANNLAIN and FRIEDLAND, Circuit Judges, and EZRA, District Judge.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation.

Plaintiff Almont Ambulatory Surgery Center, LLC along with seven other surgical centers and one physicians' medical group (collectively "Almont") appeal five orders by the district court. Because the facts are known to the parties, we do not repeat them here.

We reject Almont's first challenge on appeal—namely, that the district court improperly dismissed the case for lack of prosecution. See Fed. R. Civ. P. 41(b). Almont's failure to secure counsel by the court's deadline constituted a lengthy and unreasonable delay in prosecution and prejudiced the employee welfare plan's ability to defend against suit. In light of the factors described in Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986), the court did not abuse its discretion.

Nor did the court abuse its discretion in denying Almont's motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). Almont's proffered reasons for failing to retain counsel by the court's deadline are contradicted by the record and do not establish excusable neglect as required by Rule 60(b). See Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1222 (9th Cir. 2000).

Almont's remaining challenges to the district court's denials of its motion for disqualification, its application for in camera review, and its Federal Rule of Civil Procedure 59(e) motion echo those raised in Almont Ambulatory Surgery Center, LLC v. UnitedHealth Group, Inc., No. 17-55301, - F. App'x - (9th Cir. ___, 2019). We reject them for the same reasons. Id.

We deny Almont's motion to file certain excerpts of record in camera and under seal, filed with this court on April 24, 2018. We also deny Almont's motions to supplement the record on appeal and to file certain exhibits in camera and under seal, filed August 30, 2018. --------

AFFIRMED.