881 F2d 1084 Hurd v. S Hurd J

881 F.2d 1084

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Mrs. Walter HURD, Plaintiff-Appellant,
v.
Robert S. HURD, Walter J. Hurd, Defendant-Appellees.

No. 84-5828.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 1989.
Decided July 31, 1989.

Before HUG, CYNTHIA HOLCOMB HALL and WIGGINS, Circuit Judges.

MEMORANDUM* and ORDER

1

Appellant Mrs. Walter J. Hurd returns as appellant to this court for the fourth time. She is a vexatious litigant. If she files any further pleadings in connection to the matters addressed herein, she will be sanctioned. Her refusal to accept her divorce from her husband has burdened the courts long enough.

2

Appellant filed this action in April 1973, against her ex-husband, appellee Walter J. Hurd. She alleged breach of contract and related torts in connection with her divorce. The case proceeded to trial on two counts of the complaint. On December 6, 1978, the district court entered final judgment in favor of appellee, holding that the applicable statute of limitations had expired. On June 18, 1979, this court reversed on the statute of limitations issue and remanded the case to the district court.

3

After remand, appellant moved to file a fourth amended complaint and for a new trial in connection with appellee's alleged forgery of an equity petition dated August 15, 1968. This equity petition was unrelated to the two counts this court earlier had remanded for trial. The district court denied her motions. On June 30, 1982, this court affirmed. We stated that appellant had failed to offer any explanation for her untimely motions.

4

The district court dismissed appellant's case on October 25, 1982. Although she filed a timely notice of appeal, she did nothing further; on October 3, 1983, we dismissed her appeal for failure to prosecute.

5

In March of 1984, appellant filed a motion pursuant to Fed.R.Civ.P. 60(b) for relief from the district court's 1982 judgment of dismissal. The district court denied this motion, and appellant has brought a timely appeal. Appellant argues that she is entitled to relief from the judgment because of the appellee's alleged forgery of an equity petition and the district court's failure to hear on the merits the two claims remanded in 1979.

6

We review the district court's ruling on a Rule 60(b) motion for an abuse of discretion. Thompson v. Housing Authority of the City of Los Angeles, 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829 (1986).

7

Rule 60(b) permits a district court to relieve a party from a final judgment in the following circumstances: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief. Rule 60(b) requires that a party seeking relief make a motion within a reasonable time, but specifies that a motion based upon grounds (1), (2), or (3) must be made within one year from the judgment. This one-year restriction is jurisdictional. See Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir.1984).

8

Appellant did not file her Rule 60(b) motion for over one year and four months after the entry of judgment. Appellant concedes that "forgery is fraud." Accordingly, her motion was not timely under Rule 60(b)(3). In an attempt to avoid the strict one year limitation for grounds (1), (2), and (3), she argues that her motion falls within the catch-all subsection (6). However, subsection (6) is appropriate only when no other subsection of the Rule is applicable. Matter of Emergency Beacon Corp., 666 F.2d 754 (2d Cir.1981); William Skillings & Assocs. v. Cunard Transportation Ltd., 594 F.2d 1078 (5th Cir.1979). Thus, appellant's motion to set aside the judgment on this basis was untimely.

9

Rule 60(b)(6) permits a motion for "any other reason justifying relief" within a reasonable time. Under this subsection, appellant seeks relief from the judgment because the district court never adjudicated the two counts we remanded in 1979. Indeed, the record fails to indicate why the district court failed to adjudicate these two counts. Nonetheless, the appropriate time for complaining of any error in this regard was in her third appeal in 1982. Appellant failed to prosecute this appeal. The district court did not err in ruling that appellant had not made her Rule 60(b) motion within a reasonable time.

10

The court must dispose of several motions filed (and allegedly filed) by the parties. At oral argument, appellant inquired about the status of her alleged "Motion to Supplement the Record." The docket does not reflect the filing of this document. Appellant has filed a copy of this alleged motion, however, and it seeks "to include" another case with this appeal. Were she actually to have filed this motion, we would have rejected it. Accordingly, appellant's subsequent motion filed on June 19, 1989, requesting a ruling on her alleged motion to supplement the record is denied.

11

Shortly before oral argument, appellee filed a motion for permission to participate in oral argument, although he had not filed an appellate brief. At oral argument, appellant agreed to appellee's participation at oral argument, and the court granted appellee's motion. Appellant now moves for an order holding appellee in contempt for his alleged "wilfull [sic] deception" in his motion to participate at oral argument, and to strike appellee's exhibit "A". We deny appellant's motions.

12

AFFIRMED.

*

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