Rule 60 B

RULE 60(b)

United Student Aid Funds, Inc. v. Espinosa, -U.S.-, 130 S.Ct. 1367, 1377 (2010)

“. . .Rule 60(b)(4) applies only in the rare instance where a judgment is premised either on

a certain typ of jurisdictional error or on a violation of due process that deprives a party of notice

or the opportunity to be heard.”

In re AVI, Inc., 389 B.R. 721, 724 (9th Cir. BAP 2008)

Dismissal of chapter 11 case was properly set aside, hwere order approving a settlement

did not include a provision for dismissal of the case upon the occurrence of certain events, and the

case was subsequently dismissed without notice to creditors. Court properly set aside the

dismissal under Rule 60(b).

In re International Fibercom, Inc., 503 F.3d 933 (9th Cir. 2007)

Bankruptcy court properly set aside an order approving the assumption of an executory

contract under Rule 60(b)(6) based upon an error of law, i.e. that the workers compensation

contract was not executory, even though the order was set aside two years after it was entered.

The assumption motion also violated the court’s local rule requiring conspicuous notice that a

claimant is taking a security interest in prepetition assets to secure a post-petition debt.

In re Wylie, 349 B.R. 204 (9th Cir. BAP 2006)

Failure to respond to objection to its claim,and failure to establish an excuse for this failure,

justified denial of the claim other than on the merits. Once ten days has passed, claimant’s right to

seek reconsideration under § 502(j) is gone. He is left to seek reconsideration under Rule 60(b),

but is limited to the narrow grounds set forth in the rule. Claimant did not establish prerequisites

for relief under Rule 60(b)(1), (b)(3), or (b)(6).

In re Peralta, 317 B.R. 381 (9th Cir. BAP 2004)

“The three factors to consider with respect to vacating a default judgment are; (1) whether

the defendant’s culpable conduct led to the default; (2) whether the defendant has a meritorious

defense; and (3) whether reopening the default judgment would prejudice the plaintiff.” The

concept of culpable conduct is coextensive with excuseable neglect. Prejudice can be established

from the legal expense to the opposing party in having to address defenses that are meritless.

In re Williams, 287 B.R. 787 (9th Cir. B.A.P. 2002)

Motion to set aside default judgment brought 81 days after movant knew of judgment being

entered was untimely.

Laurino v. Syringa General Hospital, 279 F.3d 750 (9th Cir. 2002)

“Rule 60(b)(1) provides that a court may relieve a party from a final judgment on the basis

of excusable neglect. ‘ [T]he determination of whether neglect is excusable is an equitable one that

depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of

the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether

the movant acted in good faith.’ ” [citation omitted]

Community Dental Services v. Tani, 282 F.3d 1164 (9th Cir. 2002)

“…[W]here the client demonstrated gross negligence on the part of his counsel, a default

judgment against the client may be set aside pursuant to Rule 60(b)(6).”

Speiser, Krause & Madole P.C. v. Ortiz, 271 F.3d 884 (9th Cir. 2001)

“While an attorney’s egregious failure to read and follow clear and unambiguous rules

might sometimes be excusable neglect, “mistakes construing the rules do not usually constitute

‘excusable’ neglect.”

Bellevue Manor Assos. v. U.S., 165 F.3d 1249 (9th Cir. 1999) (Rule 60(b)(5))

In re Mulvania, 214 B.R. 1, (9th Cir. B.A.P. 1997)

In re Virtual Vision, Inc., 124 F.3d 1140 (9th Cir. 1997)

Creditor’s own collapse is insufficient ground for failing to comply with discovery request

in bankruptcy proceeding. Entry of default proper. Rule 60(b) motion denied.

Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir. 1997)

Pioneer Inv. Services standard for excusable neglect applies to Rule 60(b)

(Duwamish Indian Tribe) U.S. v. State of Washington, 98 F.3d 1159 (9th Cir. 1996), cert. denied,

522 U.S. 806 (1997)

In re Negrete, 183 B.R. 195 (9th Cir. B.A.P. 1995), aff’d. 103 F.3d 139 (9th Cir. 1996)

Untimely motion for reconsideration of fee order must show exceptional or extraordinary

circumstances

In re Hunter, 66 F.3d 1002 (9th Cir. 1995)

“Independent action” to relieve party of a judgment from a settlement was without

jurisdiction basis

In re Weston, 41 F.3d 493 (9th Cir. 1994)

Motion for rehearing filed by attorney for nonparty tolls time limit for appeal from

sanctions order against them. Motion for reconsideration filed by one tolls appeal time for all.

Kyle v. Campbell Soup Co., 28 F.3d 928 (9th Cir. 1994), cert. denied, 513 U.S. 867 (1994)

Mistake of law (i.e., time limits under Rule 6(b)) does not constitute excusable neglect

U.S. v. RG & B Contractors, 21 F.3d 952 (9th Cir. 1994)

60(b)(1) – error caused by corp restructuring not excusable neglect Pioneer Inv. Services

discussed

In re Cossio, 163 B.R. 150 (9th Cir. B.A.P. 1994), aff’d. 56 F.3d 70 (9th Cir. 1995)

Debtor’s attorney who did not update address and was served at old address was properly

served under B.R. 7004(b)(9)

Pioneer Inv. Services Co. v. Brunswick Assocs. Ltd Partnership, 507 U.S. 380, 113 S.Ct. 1489

(1993)

4 part test to determine whether circumstances surrounding the party’s omission constitutes

“excusable neglect” (weakens In re Hammer’s holding re “culpable conduct”):

1. Danger of prejudice to the debtor

2. The length of the delay and its potential impact on judicial proceedings

3. The reason for the delay, including whether it was within the reasonable control of the movant

4. Whether the movant acted in good faith

See also In re Nunez, 196 B.R. 150 (9th Cir. B.A.P. 1996)

In re Golob, 146 B.R. 566 (9th Cir. B.A.P. 1992)

Not use Rule 60(b)(6) if (1)(2)(3) are available. Because they were, 1 year statute barred

motion

U.S. v. Alpine Land & Reservoir co., 984 F.2d 1047, (9th Cir. 1993), cert. denied, 510 U.S. 813,

114 S.Ct. 60 (1993)

60(b)(6) only available under extraordinary circumstances. Need to show “injury and that

circumstances beyond its control prevented timely action to protect its interests”

In re Atkins, 134 B.R. 936 (9th Cir. B.A.P. 1992)

Rule 60(b) cannot be used as s substitute for an appeal. May not reargue the merits of a

final order.

In re Hammer, 940 F.2d 524 (9th Cir. 1991)

Test for setting aside default judgment; may be weakened by Pioneer Services, supra

Jones v. Aero/Chem Corp., 921 F.2d 875 (9th Cir. 1990)

60(b)(2) – Test for finding misconduct regarding discovery:

1. Due diligence in discovery requests by plaintiff ?

2. Actual or constructive knowledge of missing documents by defendant ?

3. Defendant did not divulge existence

Transgo Inc. v. Ajac Transmission Parts Corp, 911 F.2d 363 (9th Cir. 1990)

60(b)(5) Test for changed circumstances in fact or law

In re Cleanmaster Industries, Inc., 106 B.R. 628 (9th Cir. B.A.P. 1989)

Affidavits did not establish why they could not have been discovered at trial, thus not

newly discovered evidence. See School District 15 (under rule 59 re summary judgment )

Nevitt v. U.S., 886 F.2d 1187 (9th Cir. 1989)

One year statute of limitations for (b)(1), (2) or (3)

Alexander v. Robertson, 882 F.2d 421 (9th Cir. 1989)

“Fraud” sufficient to set aside judgment must result in damage to the moving party

Gregorian v. Izvestra, 871 F.2d 1515 (9th Cir. 1989), cert. denied, 493 U.S. 891 (1989)

Culpability required to deny setting aside default

In re Donovan, 871 F.2d 807 (9th Cir. 1989)

Motion to reconsider dismissal is deemed motion under Rule 60(b). Thompson v. Housing

Authority, 782 F.2d 829, 832 (9th Cir. 1986), cert. denied, 479 U.S. 829, 107 S.Ct. 112 (1986)

In re Martinelli, 96 B.R. 1011 (9th Cir. B.A.P. 1988)

Advice of counsel must be grossly negligent to constitute extraordinary circumstances

under Rule 60(b)(6)