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863 F2d 886 Mullen v. Land Parcel Liquidators Corporation a Td

863 F.2d 886

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Leo M. MULLEN, M.D. Plaintiff-Appellant,
v.
LAND PARCEL LIQUIDATORS CORPORATION, Tamara Steinsapir,
Marion Marshal, Donald A. Rosen, dba T.D.
Foreclosure Company Defendants-Appellees.

No. 88-5698.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 31, 1988.*
Decided Dec. 5, 1988.

Before BRUNETTI, KOZINSKI and DAVID R. THOMPSON, Circuit Judges.

OVERVIEW

1

MEMORANDUM**

2

Leo M. Mullen, M.D. (Mullen), appeals pro se the district court's denial of Mullen's Rule 60(b) motion for relief from a judgment of dismissal for failure to prosecute. We affirm.

3

On March 7, 1986 Mullen filed a pro se complaint alleging that Land Parcel Liquidators (LPL) had made fraudulent misrepresentations with respect to the location and value of the lots he purchased from LPL.

4

On June 19, 1986 the court, sua sponte, ordered all parties to appear for a mandatory settlement conference scheduled for August 25, 1986. Mullen made a motion for a continuance of the mandatory settlement conference based upon the ground that he had misread the date on the order. The motion was returned to Mullen due to uncured filing defects.

5

On September 5, 1986 the court entered an order dismissing Mullen's action without prejudice for lack of prosecution and non-cooperation because Mullen failed to attend the mandatory settlement conference. On September 6, 1986 Mullen filed a motion to the court to set aside the order, which the court returned due to filing defects.

6

Nearly one year later, on August 21, 1987, Mullen moved the district court to set aside the September 5, 1986 court order, pursuant to Fed.R.Civ.P. 60(b), and requested a "change of judge". The case was reassigned to Judge Rafeedie, who denied the motion to set aside the prior judgment on the ground that Mullen's misunderstanding of the date for the settlement conference did not constitute excusable neglect. The court also found that Mullen's motion was not made within a "reasonable time," as required by Rule 60(b), and was, therefore, untimely. Mullen timely appeals.

DISCUSSION

7

This court reviews dismissals for failure to prosecute for an abuse of discretion. Supermarket of Homes v. San Fernando Valley Bd., 786 F.2d 1400, 1410 (9th Cir.1986).

8

A Rule 60(b) motion must be made within a "reasonable time." Fed.R.Civ.P. 60(b); Ashford v. Stewart, 657 F.2d 1053, 1055 (9th Cir.1981). "What constitutes 'reasonable time' depends upon the facts of each case, taking into consideration the interest in finality, the reason for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to the other parties." Id.

9

Here, Mullen's 60(b) motion was made on August 21, 1987, almost one full year from the district court's entry of judgment on September 5, 1986. The motion is based on the same contentions Mullen relied upon nearly one year earlier in a procedurally defective 60(b) motion he attempted to file on September 6, 1986. Thus, Mullen knew the grounds for this motion nearly one year before filing it. Mullen provides no explanation for his delay. Accordingly, Mullen's Rule 60(b) motion was not made within a reasonable time. See Meadows v. Dominican Republic, 817 F.2d 517, 520-21 (9th Cir.1987) (60(b) motion may be denied, although filed within one year period, if the defendant is guilty of unreasonable delay).

10

Rule 60(b)(1) provides that this court may relieve Mullen from the district court's final judgment for mistake, inadvertance, surprise or excusable neglect. See Pena v. Seguras LA Comercial, S.A., 770 F.2d 811, 815 (9th Cir.1985). The court applies a three prong test to determine whether a party is entitled to relief: (1) whether the appellees will be prejudiced if the motion to vacate the dismissal is granted; (2) whether Mullen has a meritorious defense; and (3) whether culpable conduct led to the default. Id.

11

Mullen's failure to appear at the mandatory settlement conference was the result of his own culpable conduct. He received the court order setting the date of the conference and even if he had inadvertantly miscalendared the conference, opposing counsel reminded him of the date nine days prior to the status conference. Accordingly, relief is not available under Rule 60(b)(1).1

12

Rule 60(b)(6) provides that a party may seek relief from the operation of the judgment for "any other reason." However, relief under this subsection requires a showing of "extraordinary circumstances." Lafarge Conseils Et Etudes, S.A. v. Kaiser Cement, 791 F.2d 1334, 1338 (9th Cir.1986).

13

Here, Mullen contends that Judge Ideman and his clerk, Lori Blitstein, were biased and prejudiced against him. However, any claimed bias or prejudice on the part of Judge Ideman or Blitstein could not influence the denial of Mullen's 60(b) motion because the case was reassigned and decided by Judge Rafeedie. Moreover, a judge is required to recuse himself only if bias or prejudice is directed against a party and stems from an extra-judicial source. Hemington v. Sonoma County, 834 F.2d 1488, 1501-3 (9th Cir.1987), as amended, Nos. 86-2620 and 86-2728, slip op. at 11255 (9th Cir. Sept. 13, 1988). There is no evidence of any bias or prejudice against Mullen stemming from an extrajudicial source. Accordingly, the district court properly denied Mullen's Rule 60(b) motion.

14

"This court may award attorney's fees and single or double costs to the prevailing party when an appeal is frivolous." See Fed.R.App.P. 38; McCarthy v. Mays, 827 F.2d 1310, 1318 (9th Cir.1987).

15

Mullen's appeal is frivolous because his motion is based upon completely unsubstantiated claims of excusable neglect made almost one full year after he attempted to file a procedurally defective motion based upon the same claims. Mullen provides no explanation for his delay. Accordingly, appellees' request for attorney's fees and costs are granted.

16

AFFIRMED.

*

The panel finds this case appropriate for submission without oral argument pursuant to Fed.R.App.P. 34(a); Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

This court need not consider the other two prongs of the test to uphold the district court. See Pena v. Seguras LA Comercial, S.A., 770 F.2d at 815