Wolfv.Loring Ward Int'l

United States Court of Appeals, Ninth CircuitMar 30, 2010
374 Fed. Appx. 751 (9th Cir. 2010)

Nos. 08-55791, 08-55840, 08-55842.

Argued and Submitted March 5, 2010.

Filed March 30, 2010.

Theodore J. Boutrous, Jr., Esquire, Marjorie E. Lewis, Esquire, Nadia Ann Sarkis, Gibson Dunn Crutcher, LLP, Los Angeles, CA, Dennis John Holahan, Esquire, Law Office of Dennis Holahan, Los Angeles, CA, Christie Cardon, Esquire, King Spalding, Houston, TX, for Plaintiff-Appellant.

Dale F. Kinsella, Esquire, Kristen Louise Spanier, Esquire, Chad Fitzgerald, Kinsella, Weitzman, Iser, Kump Aldisert, Santa Monica, CA, Patricia L. Glaser, Glaser, Weil, Fink, Jacobs, Howard Shapiro, LLP, Los Angeles, CA, Michael Leon Meeks, Esquire, Robert M. Dato, Becky Hsiao, Buchalter Nemer, Irvine, CA, for Defendant-Appellee.

Appeal from the United States District Court for the Central District of California, Philip S. Gutierrez, District Judge, Presiding. D.C. No. 2:05-cv-03535-PSG-RZ.

Before: GOULD, IKUTA and N.R. SMITH, Circuit Judges.


MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Christine Wolf ("Wolf) appeals the district court's denial of her Motion for Relief from the Dismissal. We reverse, because the district court did not properly identify the Pioneer-Briones standard or conduct the analysis set forth in that standard. Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009).

After the district court dismissed her case for lack of subject matter jurisdiction, Wolf filed her Rule 60(b) Motion for Relief for "excusable neglect." "A district court's denial of relief from a final judgment, order, or proceeding under Federal Rule of Procedure 60(b) is reviewed for abuse of discretion." Id. at 1191-92. The Supreme Court has set forth an equitable analysis for determining whether a party is entitled to relief for excusable neglect under Rule 60(b)(1). Pioneer Inv. Servs. Co. v. Brunswick Assocs., Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); see also Briones v. Riviera Hotel Casino, 116 F.3d 379, 381 (9th Cir. 1997). A district court abuses its discretion when it fails to identify the standard set out in Pioneer and Briones and fails to analyze the motion before it under that standard. Lemoge, 587 F.3d at 1193. Further, a proper application of the Pioneer-Briones standard reveals that Wolf should be permitted to amend her complaint, correcting it to allege her state of citizenship. Id. We decline to exercise our discretionary jurisdiction under 28 U.S.C. § 1653 to amend the complaint.

Defendants argue that Wolf failed to raise excusable neglect as grounds for relief before the district court. We disagree. Although we recognize that Wolf primarily relied upon mistake as the proper grounds for relief before the district court, excusable neglect was raised as an alternative basis for relief.

Having reversed the district court's final order, we decline to review the district court's interlocutory order denying Defendants' Motion for Summary Judgment.

We deny all motions for judicial notice as moot.

The district court's denial of Wolfs Motion for Relief is REVERSED and REMANDED with instructions to the district court to grant Plaintiffs Rule 60(b) Motion and permit the Plaintiff to amend her complaint.