NOT FOR PUBLICATION
D.C. No. 2:14-cv-02139-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 twelve other surgical centers and one physicians' medical group (collectively "Almont") appeal four orders by the district court denying (1) Almont's motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), (2) Almont's motion to disqualify district court Judge Michael Fitzgerald, (3) Almont's application to file documents in support of the disqualification motion in camera, and (4) Almont's motion for reconsideration of the Rule 60(b) order pursuant to Federal Rule of Civil Procedure 59(e). Because the facts are known to the parties, we repeat them only as necessary to explain our decision.
As an initial matter, the employee welfare plan defendants (collectively "UnitedHealth") argue that we lack jurisdiction to review the district court's denial of Almont's Rule 60(b) motion, because such denial was not included in the notice of appeal for this case. See Almont Ambulatory Surgery Ctr., LLC v. UnitedHealth Grp., Inc., No. 2:14-cv-02139-MWF-VBK, ECF Nos. 2056, 2058. Indeed, although Almont timely appealed the order, the appeal was separately docketed and later dismissed for failure to prosecute. See Almont Ambulatory Surgery Ctr., LLC v. UnitedHealth Grp., Inc., No. 16-55844, ECF No. 122. Nevertheless, we can fairly infer that Almont intended to appeal the Rule 60(b) order, and thus we can construe the notice of appeal in this case as including it. See Lolli v. County of Orange, 351 F.3d 410, 414 (9th Cir. 2003) (citing Montes v. United States, 37 F.3d 1347, 1351 (9th Cir. 1994)). Doing so would not prejudice UnitedHealth, who briefed the merits of the issue. Consequently, we may exercise jurisdiction over the appeal of the Rule 60(b) order. See Lolli, 351 F.3d at 414.
Almont's challenge to the court's denial of the Rule 60(b) motion fails on the merits. 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 next challenges the denial of its motion to disqualify presiding Judge Michael W. Fitzgerald—a decision made by Judge Otis D. Wright II, to whom the motion had been randomly assigned. But Almont's theory—that Judge Fitzgerald had an irreconcilable conflict of interest because (1) his brother, an Assistant United States Attorney for the Central District of California, allegedly supervised a criminal investigation involving Almont's managers and sabotaged Almont's legal representation, and (2) the government was a party to this case—finds no support in the record. As Judge Wright properly found, the U.S. Attorney's Office engaged in no impropriety with respect to Almont's representation. Furthermore, AUSA Fitzgerald did not enter an appearance in this case, and the government was never a party at any stage of the proceedings. Absent any factual support for its motion, Almont has failed to show that disqualification was required under federal law or applicable codes of judicial conduct. See, e.g., 28 U.S.C. § 455; Judicial Conference of the United States, Committee on Codes of Conduct Advisory Op. No. 38. The district court did not abuse its discretion by denying the motion.
Nor did the court abuse its discretion by denying Almont's application to file certain documents in support of its disqualification motion in camera. Although the court summarily denied Almont's application, we may "affirm on any basis supported by the record," even where "the district court did not explain its decision." Allen v. Bedolla, 787 F.3d 1218, 1222 (9th Cir. 2015); see also United States v. Morales, 720 F.3d 1194, 1201 (9th Cir. 2013). Here, in camera review of the documents that formed the basis of the disqualification motion would have prevented the employee plan defendants from mounting an effective defense to the motion in violation of their due process rights. See Yamada v. Nobel Biocare Holding AG, 825 F.3d 536, 544-46 (9th Cir. 2016). Consistent with the district court's rulings on Almont's previous requests for in camera review, the court properly denied Almont's application.
Finally, we reject Almont's challenge to the denial of its Rule 59(e) motion. Almont failed to identify legal error or relevant newly discovered evidence, and its arguments for reconsideration largely repeated the arguments made in support of its unsuccessful Rule 60(b) motion. See 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). The court did not abuse its discretion by denying the motion.
We deny Almont's motion to file certain excerpts of record in camera and under seal, filed with this court on March 26, 2018; its motions to supplement the record on appeal and to file certain exhibits in camera and under seal, filed August 6, 2018; and its request for judicial notice, filed May 14, 2019. --------
AFFIRMED. O'SCANNLAIN, Circuit Judge, specially concurring:
I concur in the judgment and in the court's reasoning affirming the denial of Almont's motion for disqualification, application for in camera review, and motion for reconsideration.
I respectfully disagree, however, with the conclusion that our court has jurisdiction to review the district court's Rule 60(b) order. In my view, the unique procedural history of this case renders it distinguishable from Lolli: Almont's appeal of the Rule 60(b) order was docketed separately from its appeal of the other issues in this case. Because Almont failed to include the Rule 60(b) order in its notices of appeal for this case, I would hold that the Rule 60(b) order is not properly before us and decline to review it. See Valadez-Lopez v. Chertoff, 656 F.3d 851, 859 n.2 (9th Cir. 2011).