844 F. 2d 792 - Parsons v. American Potato Company

MEMORANDUM**

Robert Parsons appeals from a district court order denying his motions for postjudgment relief and for a hearing on American Potato Company's motion to dismiss. Parsons contends the district court (1) erred by dismissing his action, and (2) abused its discretion by denying his motions. Parsons' motion for postjudgment relief under Fed.R.Civ.P. 60(b) did not toll the limitations period for filing his notice of appeal. See Swimmer v. Commissioner, 811 F.2d 1343, 1345 (9th Cir.1987) (9th Cir.1986). Because Parsons filed his notice of appeal within 30 days of the district court's order denying the postjudgment motions, but more than 30 days from the date judgment was entered, the order denying the motions is the only order properly before this court. Cf. Swimmer v. Commissioner, 811 F.2d at 1345 (pro se litigant's notice of appeal was timely only as to his motions for postjudgment relief).

Under Fed.R.Civ.P. 60(b), a party may move for relief from judgment (1) because of mistake, inadvertence, surprise, or excusable neglect; (2) because of newly discovered evidence; (3) because of fraud; (4) because the judgment is void; (5) because the judgment has been satisfied, discharged, or released, or a prior judgment upon which it is based has been reversed, or it is no longer equitable that the judgment should have prospective application; or (6) because of any other reason justifying relief. This court reviews the denial of a Rule 60(b) motion for an abuse of discretion. Swimmer, 811 F.2d at 1345. However, in reviewing a denial of Rule 60(b) relief, this court will not review the merits of the underlying judgment. See id.; see also Benny v. Pipes, 799 F.2d 489, 494 (9th Cir.) (Rule 60(b) cannot be used as a substitute for a timely appeal), as amended, 807 F.2d 1514 (1986), cert. denied, 108 S.Ct. 198 (1987).

In his motion for postjudgment relief, Parsons argued that the district court erred by dismissing his action on res judicata grounds. Parsons contended that when the district court dismissed his first action, the late District Judge McNichols told him that he could refile his action in state court if he did not include government employees as defendants. However, these contentions do not raise any reason for relief cognizable under Rule 60(b). Rather, they are of the type appropriate for appellate review of the merits of the underlying judgment. See Plotkin v. Pacific Tel. & Tel., 688 F.2d 1291, 1293 (9th Cir.1982) (legal error alone does not warrant Rule 60(b) relief). Accordingly, the district court did not abuse its discretion by denying Parsons' motion for postjudgment relief.

Parsons also argues that the district court abused its discretion by denying his motion for a hearing on American Potato Company's motion to dismiss. However, the local rules for the District of Idaho provide for oral argument on motions only if (1) the motion is for summary judgment or for review of the clerk's taxation of costs, or (2) the court specifically permits oral argument. D. Idaho R. 6-102. Therefore, the district court was within its discretion when it denied Parsons' motion for a hearing. Cf. Morrow v. Topping, 437 F.2d 1155, 1156 (9th Cir.1971) (district court did not abuse its discretion by denying oral argument on motion to dismiss when local rule provided that motions were generally to be submitted without oral argument).

It appears there has been some confusion on the part of the pro se appellant as to what issues could be reviewed by this court and we decline to award sanctions.

AFFIRMED.