OpenJurist

917 F2d 566 Forrest v. Occidental Petroleum Corporation

917 F.2d 566

Unpublished Disposition

Ernestine FORREST, Plaintiff-Appellant,
v.
OCCIDENTAL PETROLEUM CORPORATION; Gerald M. Stern; Robert
E. Sawyer, Defendants-Appellees,

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

No. 89-55546.

2

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 2, 1990.
Decided Nov. 1, 1990.
As Amended on Denial of Rehearing and Rehearing En Banc
Sept. 26, 1991.

3

Before ALARCON, WILLIAM A. NORRIS, Circuit Judges and CALLISTER,* District Judge.

4

MEMORANDUM**

5

Ernestine Forrest appeals from the orders granting Occidental Petroleum Corporation's (OPC) motion to dismiss and the denial of her motion for reconsideration. We affirm.

PERTINENT FACTS

6

Ernestine Forrest was terminated from her employment as a staff attorney for Occidental Petroleum Corporation (OPC) on November 5, 1982. She filed a Title VII charge against OPC with the Equal Employment Opportunity Commission (EEOC). She received a "right-to-sue" letter from the EEOC on or about August 24, 1984. Forrest filed an action for employment discrimination under Title VII of the Civil Rights Act of 1964 and pendent state claims in the District Court for the Central District of California on November 20, 1984. That action was dismissed by the district court, sua sponte, on February 28, 1986, for Forrest's unexcused failure to serve the complaint. We affirmed the judgment of dismissal pursuant to Rule 4(j) of the Federal Rules of Civil Procedure by memorandum disposition on May 25, 1988. Nos. 86-5818, 86-5920.

7

Forrest filed the present action on July 22, 1988. On October 26, 1988, the district court filed an order directing Forrest to "file a statement showing cause why this action should not be dismissed for lack of prosecution" no later than November 22, 1988. The time for filing this statement was subsequently extended until December 16, 1988. Forrest filed the statement and proof of service on December 19, 1989. The district court vacated the order to show cause on December 22, 1988.

8

On December 12, 1988, OPC moved to dismiss this action on the ground that it failed to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and that it constituted an abuse of process. Forrest's opposition to the motion to dismiss was due on December 29, 1988. On December 27, 1988, Forrest filed a request for an extension of time to respond. The district court granted the request and ordered that the opposition be filed on January 20, 1989. On January 19, 1989, Forrest sought a second extension of time to file her opposition. The district court denied this request. On February 24, 1989, the district court entered its order granting OPC's motion to dismiss.

9

Forrest served OPC with a copy of a motion to reconsider and to vacate the order of dismissal on March 6, 1989. The motion was filed on April 5, 1989, after several unsuccessful attempts to file earlier. The district court denied the motion in an order entered April 14, 1989. On May 15, 1989, Forrest filed a notice of appeal from the denial of the motion for reconsideration. Forrest amended the notice of appeal on May 18, 1989, to include the underlying order of dismissal.

DISCUSSION

I. Order of Dismissal

10

Forrest contends that the district court's order of dismissal should be reversed on two grounds:

11

(1) The district court abused its discretion in denying her request for an extension of time to file an opposition to OPC's motion to dismiss.

12

(2) The district court erred in granting the motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

13

OPC argues that we do not have the jurisdiction to consider Forrest's appeal from the order of dismissal. We will address this issue first.

A. Jurisdiction

14

OPC argues that we lack jurisdiction to consider the appeal from the order of dismissal because Forrest's notice of appeal was filed more than two months after the district court entered its order of dismissal. Rule 4 of the Federal Rules of Appellate Procedure requires civil appeals to be filed "within 30 days after the date of entry of the judgment or order appealed from." Fed.R.App.P. 4(a)(1). Under Rule 4(a)(4) the requirement that an appeal must be filed within 30 days is inapplicable when a timely motion pursuant to Rule 59(e) of the Federal Rules of Civil Procedure is filed in the district court. Rule 59(e) provides that "[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment." (emphasis added). The 30-day filing requirement for an appeal of the judgment or order runs from the date of the entry of the order denying the Rule 59(e) motion.

15

Forrest asserted in her motion for reconsideration that it was filed pursuant to Rule 59(e) and Rule 60(b) of the Federal Rules of Civil Procedure. OPC argues that Forrest's motion should be construed under Rule 60(b). OPC asserts that a motion pursuant to Rule 59(e) is available solely to alter or amend a judgment. A Rule 60(b) motion does not extend the time in which a party must file an appeal from an order or judgment. Notes of Advisory Committee on Rule 60(b).

16

Forrest argues that because her motion for reconsideration is based in part on Rule 59(e), the 30-day period for filing an appeal was automatically extended. We have previously liberally interpreted motions for reconsideration as having been filed pursuant to Rule 59(e) in determining whether the time for filing a notice of appeal from the underlying judgment or order has run. See, e.g., Sierra-On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1420 (9th Cir.1984) ("Even if a motion [to alter or amend] is inartfully drawn or 'so defective that it could not properly be granted,' it is still enough to toll the time for appeal." (quoting Yanow v. Weyerhouser, 274 F.2d 274, 283 (9th Cir.1959) (en banc) cert. denied, 362 U.S. 919 (1960)); Clipper Express v. Rocky Mountain Motor Tariff, 690 F.2d 1240, 1249 (9th Cir.1982) (holding that a motion for reconsideration which raises no new grounds may constitute a proper Rule 59(e) motion); Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880 (9th Cir.1983) (A Rule 59(e) motion may take the form of a motion for reconsideration).

17

Although Forrest's motion for reconsideration was not filed until April 5, 1989, it was served on March 6, 1989, within ten days of the entry of the order of dismissal of the action on February 24, 1988.1 Rule 59(e) requires service, not filing, of a motion for reconsideration within ten days of the entry of the order. OPC does not assert that the motion for reconsideration was untimely filed. We do not find that the 30-day delay between the date the motion was served and the date it was filed to be unreasonable under the circumstances. See Fed.R.Civ.P. 5(d). Accordingly, the time for appeal from the order of dismissal did not begin running until April 14, 1989, the date the district court entered its order denying Forrest's motion. Forrest filed a notice of appeal "from the Order denying plaintiff's motion to reconsider and vacate order of dismissal" on May 15, 1989, the final day of the 30-day time limit set forth in Rule 4(a)(1) of the Federal Rules of Appellate Procedure. Forrest amended her notice of appeal on May 18, 1989, to include an appeal from the underlying order of dismissal. Thus, the appeal from the order of dismissal relates back to May 15, 1989. See Sierra On-Line, Inc. v. Phoenix Software Inc., 739 F.2d 1415, 1421 (9th Cir.1984) (notice of appeal from order denying reconsideration construed to include appeal from underlying injunction) (citing Foman v. Davis, 371 U.S. 178 (1962)). Because the notice of appeal from the order of dismissal was timely, we have jurisdiction to consider it.

18

B. Denial of Request for Extension of Time to File an Opposition to the Motion for Dismissal

19

Forrest contends that the district court erred in denying her motion for an extension of time to file an opposition to OPC's motion to dismiss. Rule 6 of the Federal Rules of Civil Procedure permits the granting of such extension as follows:

20

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect....

21

Fed.R.Civ.P. 6(b) (emphasis added). A district court's order granting or denying a request for an extension of time is reviewed for abuse of discretion. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir.1987).

22

"Cause shown" is not authoritatively defined, but it implies some justification for the issuance of an order granting an extension of time. See 4A C. Wright & A. Miller, Federal Practice and Procedure, Sec. 1165, at 475 (1987). The district court was presented with all of the reasons supporting Forrest's alleged need for additional time to file an opposition to the motion to dismiss. In denying a second request for an extension of time, the district court weighed these allegations against the fact that Forrest had already been granted one extension of time in which to file her opposition. Furthermore, the district court had previously granted Forrest an extension of time to respond to the order to show cause why the action should not be dismissed. In light of these previous extensions and a six-year history of delay in the prosecution of a matter that arose in 1982, we conclude that the district court did not abuse its discretion in denying Forrest's second request for an extension of time to file an opposition to OPC's motion to dismiss.

23

C. Order of Dismissal on Rule 12(b)(6) Grounds

24

Forrest claims that the district court erred in granting OPC's motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure on two grounds. First, she was not given a reasonable opportunity to present all material pertinent to a summary judgment motion as required by Rule 12(b)(6). Second, Forrest argues that dismissal can be granted for failure to state a claim only if there is no doubt that the non-moving party cannot allege sufficient facts to support her claim. Forrest asserts that she is prepared to present such facts.

25

Dismissal of a complaint pursuant to Rule 12(b)(6) is a question of law that is reviewed de novo. Abramson v. Brownstein, 897 F.2d 389, 391 (9th Cir.1990). Review is limited to the contents of the complaint. Pinhas v. Summit Health, Ltd., 894 F.2d 1024, 1028 (9th Cir.1989).

26

Forrest's first argument is based upon the following language:

27

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

28

Fed.R.Civ.P. 12(b). Memorandums of points and authority, briefs, and oral arguments pertaining to the motion for dismissal do not constitute matters outside the pleadings requiring conversion of the motion to dismiss to a motion for summary judgment. See Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2nd Cir.1989) (Court's dismissal is consistent with a Rule 12(b)(6) analysis where court considered the complaint along with all legal arguments made in support of and in opposition to the motion to dismiss); 5A C. Wright & A. Miller, Federal Practice and Procedure, Sec. 1366, at 500 (1990).

29

There is no indication in the record that the district court considered any facts outside of the complaint and arguments made in support of or in opposition to the motion to dismiss. Forrest claims that she presented documents outside the pleadings to the court which were not excluded, thus requiring the court to deny OPC's motion to dismiss. It appears that the document to which Forrest refers is the untimely "Interim Response to the Motion for Dismissal." This response presents legal arguments in opposition to the motion to dismiss. It does not contain evidence that would raise a disputed issue of fact. Consideration of these legal arguments by the district court does not require the district court to treat the motion as a request for summary judgment. Furthermore, Forrest concedes that "this document apparently did not arrive in time to the District Court to prevent its February 21, 1989, order of dismissal."2 Appellant's Reply Brief at 10-11. Thus, no showing has been made that the district court considered facts outside the pleadings, or improperly rejected Forrest's "Interim Response to the Motion for Dismissal."

30

OPC's motion to dismiss pursuant to Rule 12(b)(6) alleged that the statute of limitations bars each cause of action presented by Forrest. A statute of limitations defense may be raised by motion to dismiss if the running of the limitations period is apparent on the face of the complaint. Jablon v. Dean Witter & Co., 614 F.2d 677 (9th Cir.1980). The motion can be granted "only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Id. at 682. Furthermore, a complaint should not be dismissed under Rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir.1990) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In her second argument, Forrest claims that since she can allege sufficient facts to support her claim, the district court erred in granting OPC's motion to dismiss. Review of the complaint and all arguments in support of and in opposition to the motion to dismiss do not demonstrate that any set of facts would support Forrest's claim. Therefore, the district court properly granted the motion to dismiss pursuant to Rule 12(b)(6).

31

In her reply brief, Forrest argues that the statute of limitations was tolled by the filing of her previously dismissed federal claim and by the filing of her state actions. OPC moved to file a supplemental brief to address the tolling of the statute of limitations. A motions panel of this court denied the request, and construed it instead as a motion to strike. Rule 28 of the Federal Rules of Appellate Procedure requires that the brief of an appellant "contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on." Fed.R.App.P. 28(a)(4).

32

In her opening brief, Forrest merely states that she has "demonstrated in papers filed with this Court both a tolling of the statute of limitations and that the Court can take judicial notice of plaintiff's compliance with the applicable statute of limitations." Appellant's Opening Brief at 14. It is not clear which papers Forrest is referring to in this statement. She presents no argument in support of this contention nor does she cite any supporting authority.

33

Issues not raised in an appellant's opening brief are waived on appeal. Nilsson, Robbins, Dalgarn, Berlinier, Carson & Wurst v. Louisiana Hydrolec, 854 F.2d 1538, 1548 (9th Cir.1988). Likewise, "an appellant cannot raise a new theory for the first time in its reply brief." Big Country Foods v. Board of Education of Anchorage S.D., 868 F.2d 1085, 1088 (9th Cir.1989). Forrest sets forth a bare allegation in her opening brief that the statute of limitations is tolled. We construe the failure to present an argument in support of a contention as a waiver. Northwest Acceptance Corp. v. Lynnwood Equipment, 841 F.2d 918, 924 (9th Cir.1988). Accordingly, we must grant the motion to strike Forrest's contentions concerning tolling that are argued for the first time in the reply brief. Our review of the pleadings persuades us that each of Forrest's claims are barred by the statute of limitations. Therefore, the district court properly dismissed this action. Since we affirm the order of dismissal pursuant to Rule 12(b)(6), we do not consider whether OPC shows abuse of process.

34

II. Denial of Motion to Reconsider and Vacate the Order of Dismissal

35

Forrest claims that the district court erred in denying her motion to reconsider and to vacate the order of dismissal. Forrest moved for reconsideration pursuant to Rule 59(e) and 60(b) of the Federal Rules of Civil Procedure. The district court's denial of Forest's motion is reviewed for abuse of discretion. In re Hawaii Federal Asbestos Cases, 871 F.2d 891 (9th Cir.1989) (Rule 59(e) motion reviewed for abuse of discretion); Whale v. United States, 792 F.2d 951, 952 (9th Cir.1986) (Rule 60(b) motion reviewed for abuse of discretion).

36

Forrest asserts that her motion for reconsideration is brought pursuant to Rule 59(e) to correct any error resulting from the court's failure to consider judicially noticeable facts and the facts and law presented in her "Interim Response to the Motion for Dismissal," which was allegedly presented to the district court on February 21, 1989.

37

The precise contours of relief under Rule 59(e) have not been authoritatively defined. Barry v. Bowen, 825 F.2d 1324, 1328 n. 1 (9th Cir.1987). In cases addressing the time for appeal, we have generally found a motion for reconsideration to be within Rule 59(e) if it requests a substantive change in the judgment, regardless of the grounds upon which it is raised. See, e.g., Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1419 (9th Cir.1984) ("A motion for reconsideration, even if it raises no new grounds but 'simply rehashes arguments heard at trial,' may be made under Rule 59(e)") (quoting Clipper Express v. Rocky Mountain Motor Tariff, 690 F.2d 1240, 1249 (1982)). On the other hand, when reviewing the merits of an order granting or denying a Rule 59(e) motion, we apply a stricter standard. See, e.g., MGIC Indemnity Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir.1986) (District court did not abuse its discretion in awarding attorneys' fees upon finding a Rule 59(e) motion frivolous because it introduced nothing new); Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985) (Rule 59(e) motion for reconsideration of summary judgment properly denied because it presented no arguments that had not already been raised in opposition.)

38

Forrest's grounds for seeking reconsideration pursuant to 59(e) were based on arguments that could have been presented to the district court in a timely opposition to OPC's motion for dismissal. Accordingly, the district court did not abuse its discretion in denying the motion pursuant to Rule 59(e).

39

Forrest's motion for reconsideration was also filed pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Forrest appears to rely on Rule 60(b)(1) which permits a court to relieve a party from a final judgment or order for "mistake, inadvertence, surprise, or excusable neglect." However, Forrest does not advance any argument, or present any evidence establishing the existence of any of these grounds for relief. Therefore, the district court did not abuse its discretion in denying Forrest's motion for reconsideration pursuant to Rule 60(b).

III. Sanctions

40

OPC requests sanctions against Forrest for filing a frivolous appeal. In her reply brief, Forrest requests sanctions against OPC for bad faith assertions of law and fact, failing to respond to the facts and arguments presented in Forrest's opening brief, mischaracterizing Forrest's motion for reconsideration, and for submitting an "irrelevant" supplemental excerpt of record. Finally, in its supplemental brief, OPC requests sanctions against Forrest for requesting sanctions against OPC.

41

OPC has failed to demonstrate that Forrest has filed a frivolous appeal. Sanctions may be imposed for bringing a frivolous appeal. Fed.R.App.P. 38; 28 U.S.C. Sec. 1912. We have held, however, that an appeal is only frivolous "if the result is obvious, or the arguments of error are wholly without merit." Wilcox v. Commissioner of Internal Revenue, 848 F.2d 1007, 1009 (9th Cir.1988). While we have concluded that Forrest's arguments of error are not persuasive, they are not "wholly without merit." We reject OPC's request that Forrest be sanctioned for filing a frivolous appeal.

42

While we believe that Forrest's request for sanctions in this case is frivolous, we have no power to impose Rule 11 sanctions for a frivolous sanctions request on appeal. See Partington v. Gedan, 923 F.2d 686 (9th Cir. 1991) (en banc). We may only impose sanctions pursuant to rule 38 of the Federal Rules of Appellate Procedure if the appeal itself is frivolous, which it is not. Therefore, OPC's request that we impose sanctions against Forrest is denied.

IV. Issues Not Properly Raised on Appeal

43

In her opening brief, Forrest states that she is "entitled to the guaranties of due process and the equal protection of the laws." Appellant's Opening Brief at 15. However, Forrest does not present any argument in her brief in support of these contentions. Pursuant to Rule 28 of the Federal Rules of Appellate Procedure, the appellant's brief "shall contain the contentions of the appellant with respect to the issues presented and the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on." Fed.R.App.P. 28(a)(4). Forrest's failure to comply with Rule 28 waives these issues on appeal. Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 923 (9th Cir.1988); see also Nilsson, Robbins, Dalgarn, Berlinier, Carson & Wurst v. Louisiana Hydrolec, 854 F.2d 1538, 1548 (9th Cir.1988) (per curiam) ("If a brief fails to contain the contentions of the appellant with respect to the views presented, and fails to contain citations to authorities, statutes and the record, the issue is waived.").

CONCLUSION

44

The order of dismissal and the denial of Forrest's motion for reconsideration are each affirmed. OPC's motions for sanction against Forrest are denied. Forrest's motion for sanctions against OPC is also denied.

45

AFFIRMED.

*

Hon. Marion J. Callister, Sr. District Judge, for the district of Idaho, sitting by designation

**

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

The tenth day following February 22, 1989, was Saturday, March 4, 1989. Pursuant to Fed.R.Civ.P. 6(a), the last day of any pertinent time period is not counted if it is a Saturday or Sunday. Thus, Monday, March 6, 1989, was the tenth day for filing purposes

2

Forrest argues that she submitted this document on February 21, 1989. The record does not support this factual contention. The only copy of this document on file is as Exhibit D to Forrest's motion for reconsideration. There is also a copy of Forrest's handwritten cover letter to Shirley Frost, Clerk to Judge Takasugi, dated February 21, 1989. (CR 32 at Exhibit F). This letter is not date stamped by the court, and it was not entered on the district court's docket sheet