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657 F.2d 1053

Docket No. 80-3033.

Ashford v. Steuart

Ninth Circuit Court of Appeals

Submitted March 23, 1981.

Decided Sept. 28, 1981.

Ninth Circuit Court of Appeals · decided 1981-09-28

2 counsel of record

Key passage — most relied on by later courts

“What constitutes 'reasonable time' depends on 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.”

quoted by 19 later decisions, including Mullen v. Land Parcel Liquidators Corporation a Td, Russell v. O'Grady

“[M]istake of fact may be grounds under an action in equity to grant relief as provided under Rule 60(b)(7). It states "any other reason justifying relief from the operation of a judgment." Further, the Supreme Court of this state has ruled erroneous assumptions may be grounds for entering a new order.”

quoted by 3 later decisions, including Gillmor v. Wright, PRC Harris, Inc. v. Boeing Co.

Relies on Security Mutual Casualty Company v. Century Casualty Company · Quincy Lairsey and Frances Lairsey v. The Advance Abrasives Company · Corex Corporation v. United States

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1981-09-28

How this case has been cited

Cited by 112 later decisions — most recently July 2020 · most notably Kagan v. Caterpillar Tractor Co. (1986), Meiboom v. Watson (2000)

36 federal appellate · 10 district · 9 state decisions

34019811990200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*1054Edward A. Ashford, in pro. per.

¶2Robert R. Gates, Boise, Idaho, for defendants-appellees.

¶3Before BROWNING, Chief Judge, and PREGERSON and BOOCHEVER, Circuit Judges.

¶4PER CURIAM:

¶5Plaintiff failed to file a notice of appeal within thirty days of the order denying leave to file his complaint in forma pauperis. We therefore have no jurisdiction to consider the merits of that ruling. Fed.R.App.P. 4(a). However, we do have jurisdiction to consider the denial of plaintiff’s motion for reconsideration under Fed.R.Civ.P. 60(b) since plaintiff’s motion for leave to appeal in forma pauperis was filed within thirty days after denial of this motion and was sufficient evidence of plaintiff’s intent to appeal. See Noa v. Key Futures, Inc., 638 F.2d 77, 78 (9th Cir. 1980); Tillman v. United States, 268 F.2d 422, 423-24 (5th Cir. 1959).

¶6The district court denied plaintiff leave to file his complaint because he had improperly named the warden as defendant and had not alleged facts sufficient to satisfy Fed.R.Civ.P. 8(a). In his Rule 60(b) motion, filed more than 30 days after the order *1055denying leave to file, plaintiff sought to dismiss his complaint with respect to the warden and to re-argue the sufficiency of his complaint.

¶7 Construing the motion to reconsider as a request for relief from a judicial “mistake” under 60(b)(1), the motion was untimely. According to the rule, such motions must be brought within a “reasonable time” and in any event not longer than one year after the judgment was entered. 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 other parties. See Lairsey v. Advance Abrasives Co., 542 F.2d 928, 930-31 (5th Cir. 1976); Security Mutual Casualty Co. v. Century Casualty Co., 621 F.2d 1062, 1067-68 (10th Cir. 1980). Because the time for appeal had passed in this case, the interest in finality must be given great weight. No reason is suggested for the failure to timely challenge the ruling by direct appeal or 60(b) motion. Nothing impeded appellant’s awareness of the court’s ruling and of all the relevant facts and law.

¶8Denial of the motion was also proper if the motion is construed as a request for relief for “any other reason justifying relief from the operation of the judgment” under Rule 60(b)(6). Relief under section 60(b)(6) is reserved for “extraordinary circumstances.” None were alleged. See Corex Corp. v. United States, 638 F.2d 119 at 121 (9th Cir. 1981).

¶9AFFIRMED.

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