FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHELLY LAL, individually and in 

her representative capacity on

behalf of the Estate of Kamal L.

Lal, decedent, and in her

representative capacity as guardian

ad litem for Sagar Lal; ESTATE OF No. 08-15645

KAMAL L. LAL; SAGAR LAL, a D.C. No.

minor,  06-CV-05158-PJH

Plaintiffs-Appellants,

OPINION

v.

STATE OF CALIFORNIA; CALIFORNIA

HIGHWAY PATROL; FRANK NEWMAN;

MATTHEW OTTERBY,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted

July 13, 2009—San Francisco, California

Filed June 25, 2010

Before: Cynthia Holcomb Hall, William A. Fletcher and

Richard A. Paez, Circuit Judges.

Opinion by Judge William A. Fletcher;

Dissent by Judge Hall

9303
COUNSEL

Sydney E. Fairbairn, Novato, California, Charles Stephen

Ralston, East Chatham, New York, for the appellants.

Thomas A. Blake, John P. Devine, OFFICE OF THE CALIFORNIA ATTORNEY GENERAL, San Francisco, California, for the appellees.

OPINION

W. FLETCHER, Circuit Judge:

Shelly Lal brought suit against the California Highway

Patrol (“CHP”) and officers Frank Newman and Matthew

Otterby (collectively, “Defendants”) for the shooting death of

her husband. The district court dismissed her case with prejudice under Federal Rule of Civil Procedure 41(b) for failure

to prosecute when her attorney failed to meet deadlines and

attend hearings. When Lal later learned of her attorney’s

behavior and the dismissal of her suit, she hired a new attorney and filed a motion for relief from judgment pursuant to

Federal Rule of Civil Procedure 60(b)(6). The district court

denied the motion.

We reverse. We hold, pursuant to Community Dental Services v. Tani, 282 F.3d 1164 (9th Cir. 2002), that an attorney’s

gross negligence constitutes an extraordinary circumstance

9306 LAL v. CALIFORNIA
warranting relief from a judgment dismissing the case for failure to prosecute under Rule 41(b).

I. Background

Lal’s husband Kamal Lal was shot and killed by CHP officers Newman and Otterby on March 6, 2005. On March 8,

2005, Lal retained Charles Spahr to represent her and her

minor son. In December 2005, Spahr and his co-counsel Mark

Webb filed suit against Defendants in state court on behalf of

Lal, her son, and her husband’s estate. On August 23, 2006,

Defendants removed to federal court. 

On November 15, 2006, the district court allowed Webb to

withdraw. Spahr remained as Lal’s attorney. On November

26, Defendants’ counsel sent Spahr their initial Rule 26 disclosures. Spahr made no initial disclosures. Two days later,

Defendants filed a case management statement. The initial

case management conference was scheduled for November

30. Defense counsel and Spahr appeared at the scheduled

time, but the court continued the conference to January 18,

2007. The court ordered counsel for both parties to confer

before January 18 and ordered Spahr to provide Rule 26 disclosures within two weeks. Spahr did neither. 

According to her sworn statement provided to the district

court, Lal called Spahr in mid-December 2006 to check on the

status of her case. She recounts that Spahr told her that he had

participated in a conference call with defense counsel and the

district court judge, that the judge wanted the parties to settle

the case, and that the next meeting would take place in

approximately two to three months. He did not tell her about

the scheduled January 18 case management conference. 

Neither Spahr nor Lal appeared at the January 18 management conference. Lal states that she did not know about the

hearing and that she would have appeared, either with or

without Spahr, had she known about it. On January 19, the

LAL v. CALIFORNIA 9307
district court entered a written order directing Lal and Spahr

to show cause why sanctions should not be imposed “including dismissal of the complaint for failure to prosecute and/or

monetary sanctions for her repeated refusal to comply with

the court’s orders.” The court set a hearing on the order to

show cause for February 1 and warned that “[i]f plaintiff fails

to appear her complaint will be dismissed.” 

Neither Lal nor Spahr appeared on February 1. Lal states

that she did not know about this second hearing. At the hearing, counsel for Defendants stated that they had received no

communications from Spahr and renewed a previous request

that the court dismiss the case. The next day, in a written

order, the district court dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 

Lal states that she called Spahr in March to check on her

case. She states that Spahr told her that Defendants needed

more time for discovery. Lal left Spahr a voicemail on June

1. Spahr replied in a text message, telling Lal that he would

call her that evening. But Spahr did not call. Spahr left a

voicemail about a week later, telling Lal that he was in the

process of filing pre-trial motions and that Webb had tentatively agreed to work on her case again. 

Lal left another voicemail for Spahr in August, but he did

not respond. Lal then called Webb’s office and left a message

for Webb. Webb also did not respond. Lal left another voicemail for Spahr in September. He finally returned her call on

September 21. He told her he had scheduled depositions in

her case for late November. When Lal asked about additional

depositions, Spahr said it would be better to wait to discuss

her case until Webb returned the following week. Spahr then

scheduled a conference call for himself, Webb, and Lal for

September 25. Spahr did not call at the time scheduled for the

conference call. Lal called Spahr 30 minutes later and left a

voicemail. She then sent him an email the next day about their

9308 LAL v. CALIFORNIA
failed conference call. She received no response to either her

voicemail or email.

Lal states that she called attorney Wynn Herron at about

this time to “get a second opinion.” Herron returned her call

on October 1, 2007. He told Lal that the district court had dismissed her case on February 2, 2007, because Spahr had

failed to appear for a hearing. Lal states that she was shocked

and told Herron she was never informed of this development.

Herron advised her to file a complaint with the California

State Bar. Lal asked Herron about the merits of her case, but

Herron told Lal that he did not handle such cases. 

Lal states that she called Spahr later that same day. Spahr

told her that he had missed the district court hearing for a

good reason and that he had re-filed her case in state court.

Lal asked for copies of the papers he filed, along with the case

numbers. Lal then called Herron again and asked him to find

the state court case Spahr claimed he filed on her behalf. Herron could find no pending cases filed on behalf of Lal or her

son. 

Lal states that she called Spahr the next day, October 2, to

get copies of the documents he claimed to have filed. Spahr

told her he needed 24 to 48 hours to retrieve the documents,

that he had moved offices, and “if anything fell through the

cracks, that he would make it up to me.” Lal was distraught

and spoke to her priest, who called Spahr. Spahr left Lal a

message on her voicemail at work at 7:00 p.m. on October 3,

suggesting that they set up a meeting the next morning to discuss Spahr’s plans for Lal’s case. Lal states that she was not

at work on the morning of October 4, and did not receive the

message in time to meet with Spahr. It is unclear whether the

meeting would have actually taken place if Lal had received

the message in time.

Lal filed a complaint with the State Bar eight days later, on

October 12. Spahr called her that same day and told her he

LAL v. CALIFORNIA 9309
was filing a “pre-hearing motion” in her case. Lal again asked

for copies of all of the documents filed in her case. After not

receiving anything for another two weeks, Lal called Spahr

again. Spahr said he would deliver the papers to her house

that evening, but he never came.

Lal called the State Bar in November and spoke with Willis

Shalita, the investigator assigned to her complaint. Shalita

advised Lal to get another attorney. Lal attempted to retain

attorney Paula Canny that same day. Lal was told that Canny

was undergoing chemotherapy and might not be able to take

on her case, and that she would need to read everything before

making a decision. Lal states that a person in Canny’s office

told her “a couple of weeks later” that Canny had a conflict

of interest and could not represent her. 

Lal then called several other attorneys, all of whom

declined to help her. On December 27, Lal contacted attorney

Sydney Fairbairn. Fairbairn advised Lal to demand that Spahr

turn over her case files and to hire a service to obtain copies

of her case files from federal and state court. Lal called Fairbairn back four days later to say that she had hired a service.

She then met with Fairbairn on January 5, 2008. Lal formally

retained Fairbairn on January 22. 

On January 25, 2008, Fairbairn filed a motion for substitution of counsel and a motion for relief from judgment under

Federal Rule of Civil Procedure 60. The Rule 60 motion was

supported by sworn declarations from Fairbairn and Lal. 

The district court held a hearing on the Rule 60 motion for

relief from the dismissal for failure to prosecute on March 5,

and denied the motion two days later. The court expressed

doubt about the applicability of our decision in Tani, 282 F.3d

1164, in which we held that an attorney’s gross negligence

was a ground for granting a motion for relief from a default

judgment. The court went on to hold that, even if Tani

9310 LAL v. CALIFORNIA
applied, Lal had not diligently pursued relief under Rule

60(b)(6) and that her delay prejudiced Defendants. 

Lal timely appealed.

II. Standard of Review

We review for abuse of discretion a district court’s dismissal of an action under Federal Rule of Civil Procedure

41(b) for failure to prosecute. Hearns v. San Bernardino

Police Dep’t, 530 F.3d 1124, 1129 (9th Cir. 2008). We also

review for abuse of discretion a district court’s decision to

deny a Rule 60(b) motion. Cal. Dep’t of Soc. Servs. v. Leavitt,

523 F.3d 1025, 1031 (9th Cir. 2008). We review de novo “any

questions of law underlying the district court’s decision” to

deny a Rule 60(b) motion. Jeff D. v. Kempthorne, 365 F.3d

844, 850-51 (9th Cir. 2004).

III. Discussion

Lal appeals both the district court’s order dismissing her

action for failure to prosecute and the order denying her

motion for relief from judgment. We address each in turn.

A. Dismissal for Failure to Prosecute

The district court dismissed Lal’s suit under Rule 41(b) on

February 2, 2007. Rule 41(b) states that “[u]nless the dismissal order states otherwise, a dismissal under this subdivision (b) . . . operates as an adjudication on the merits.” The

district court order dismissing Lal’s action did not state otherwise and was therefore an adjudication on the merits. Because

the dismissal order ended Lal’s suit on the merits, it is a final

decision appealable under 28 U.S.C. § 1291.

[1] Federal Rule of Appellate Procedure 4(a)(1)(A) provides, “In a civil case . . . the notice of appeal . . . must be

filed with the district clerk within 30 days after the judgment

LAL v. CALIFORNIA 9311
or order appealed from is entered.” Lal filed her notice of

appeal on March 24, 2008, over one year after the district

court dismissed her action. Under the version of Federal Rule

of Appellate Procedure 4(a)(4)(A)(vi) then in effect, the 30-

day deadline for filing a notice of appeal started to run from

the time the court entered an order disposing of a Rule 60

motion, so long as the Rule 60 motion was filed “no later than

10 days after the judgment [was] entered.”

1

 However, Lal

filed her Rule 60 motion on January 25, 2008, long after the

court’s February 2, 2007 dismissal order. We therefore do not

have jurisdiction to review the district court’s dismissal of

Lal’s action for failure to prosecute.

B. Relief from Judgment

[2] Federal Rule of Civil Procedure 60(b) provides, in relevant part:

On motion and just terms, the court may relieve a

party or its legal representative from a final judgment, order, or proceeding for the following reasons:

. . . 

(6) any other reason that justifies relief.

A motion under Rule 60(b)(6) “must be made within a reasonable time.” Fed. R. Civ. P. 60(c)(1). We use Rule 60(b)(6)

“sparingly as an equitable remedy to prevent manifest injustice.” United States v. Alpine Land & Reservoir Co., 984 F.2d

1047, 1049 (9th Cir. 1993). To receive relief under Rule

60(b)(6), a party must demonstrate “extraordinary circumstances which prevented or rendered him unable to prosecute

[his case].” Tani, 282 F.3d at 1168 (citing Martella v. Marine

1Rule 4(a)(4)(A)(vi) was amended in 2009 to provide a 28-day limit

rather than a 10-day limit for filing the Rule 60 motion. At all times relevant to this case, the 10-day limit applied. 

9312 LAL v. CALIFORNIA
Cooks & Stewards Union, 448 F.2d 729, 730 (9th Cir. 1971)

(per curiam)). 

[3] An attorney’s actions are typically chargeable to his or

her client and do not ordinarily constitute extraordinary circumstances warranting relief from judgment under Rule

60(b)(6). See Link v. Wabash R.R. Co., 370 U.S. 626, 633-34

(1962); Ringgold Corp. v. Worrall, 880 F.2d 1138, 1141-42

(9th Cir. 1989). But there are exceptions to this general principle. In Community Dental Services v. Tani, 282 F.3d 1164

(9th Cir. 2002), we joined the Third, Sixth and Federal Circuits in holding that an attorney’s gross negligence constitutes

such an extraordinary circumstance. We followed the Third

Circuit in defining gross negligence as “neglect so gross that

it is inexcusable.” Id. at 1168 (quoting Boughner v. Sec’y of

Health, Educ. & Welfare, 572 F.2d 976, 978 (3d Cir. 1978)).

[4] The attorney in Tani “virtually abandoned his client by

failing to proceed with his client’s defense despite court

orders to do so” and deliberately deceived his client about

what he was doing (or not doing). Id. at 1170-71. The district

court issued a default judgment. When Tani learned of the

default judgment, he promptly hired a new attorney and filed

a motion for relief from the default judgment under Rule

60(b)(6). Id. at 1167. The district court denied the motion.

[5] We held that the behavior of Tani’s first attorney constituted gross negligence and that the district court abused its

discretion in refusing to grant Tani relief under Rule 60(b)(6).

We wrote, “[C]onduct on the part of a client’s alleged representative that results in the client’s receiving practically no

representation at all clearly constitutes gross negligence, and

vitiat[es] the agency relationship that underlies our general

policy of attributing to the client the acts of his attorney.” Id.

at 1171.

[6] We apply Tani to this case and hold that an attorney’s

gross negligence resulting in dismissal with prejudice for failLAL v. CALIFORNIA 9313
ure to prosecute constitutes an “extraordinary circumstance”

under Rule 60(b)(6) warranting relief from judgment. Dismissal with prejudice under Rule 41(b) for failure to prosecute is the converse of a default judgment. In both instances,

the consequence of the attorney’s action (or inaction) is a loss

of the case on the merits. The only significant difference is

that the plaintiff rather than the defendant suffers the adverse

judgment.

Our holding is consistent with Latshaw v. Trainer Wortham

& Co., Inc., 452 F.3d 1097 (9th Cir. 2006). The plaintiffappellant in Latshaw requested Rule 60(b)(6) relief from a

judgment resulting from her acceptance of an offer of judgment under Federal Rule of Civil Procedure 68. Id. at

1102-03. She stated that she accepted the offer based on her

attorney’s coercion and erroneous legal advice, and she

argued that his conduct constituted gross negligence meriting

Rule 60(b)(6) relief. Id. We distinguished default judgments,

which are disfavored, from Rule 68 judgments, which are “actively supported” by courts. Id. at 1103. We therefore

declined to extend Tani to allow relief from judgments

entered under Rule 68, holding that the plaintiff-appellant’s

attorney’s conduct, even if grossly negligent, did not constitute grounds for Rule 60(b)(6) relief.

A dismissal for failure to prosecute under Rule 41(b) is

much more like a default judgment than a Rule 68 judgment.

We based our decision in Tani on “the well-established policy

considerations we have recognized as underlying default

judgments and Rule 60(b).” Tani, 282 F.3d at 1169. The same

policy considerations underlie dismissal for failure to prosecute. We have stated that dismissal under Rule 41(b) “is so

harsh a penalty it should be imposed as a sanction only in

extreme circumstances.” Dahl v. City of Huntington Beach,

84 F.3d 363, 366 (9th Cir. 1996). This is almost identical to

our stance on default judgments, which are “appropriate only

in extreme circumstances.” Falk v. Allen, 739 F.2d 461, 463

(9th Cir. 1984) (per curiam). 

9314 LAL v. CALIFORNIA
It is obvious that the conduct of Lal’s attorney constituted

gross negligence. The facts recounted in Lal’s sworn statement are not disputed. The similarities between the attorney’s

conduct in Tani and Spahr’s conduct in this case are striking.

First, both attorneys “virtually abandoned [their] client[s] by

failing to proceed with [their] client[s’] [case] despite court

orders to do so.” Tani, 282 F.3d at 1170. The attorney in Tani

filed the answer late and never provided plaintiffs with a

copy. He “failed to contact [plaintiff] for preliminary settlement discussions despite being ordered to do so, failed to

oppose [plaintiff’s] motion to strike the answer, and failed to

attend various hearings.” Id. at 1171. Spahr failed to make initial Rule 26 disclosures after being ordered to do so; failed to

meet, confer, and participate in the joint case management

conference after being ordered to do so; and failed to attend

hearings. 

[7] Second, both the attorney in Tani and Spahr “deliberately misle[d] [their clients] and depriv[ed] [them] of the

opportunity to take action to preserve [their] rights.” Id.

Tani’s attorney “explicitly represented to Tani that the case

was proceeding properly.” Id. Tani only learned of the default

judgment against him when the judgment was mailed to his

office. Id. at 1167. Similarly, Spahr continued to tell Lal that

her case was moving forward even after it had been dismissed. In mid-December 2006, Spahr told Lal that the next

meeting on her case would be in two to three months, even

though the case management conference was scheduled for

January 18, 2007. Although the district court had dismissed

Lal’s action for failure to prosecute on February 2, 2007,

Spahr told her in March that Defendants needed more time for

discovery. On September 21, 2007, Spahr lied to Lal, telling

her he had scheduled depositions in her case for November.

On October 1, Spahr told Lal that he had re-filed her suit in

state court. On October 12, Spahr told Lal he was filing a

“pre-hearing motion” in her case. Throughout October, Spahr

repeatedly assured Lal that he would give her copies of all of

the documents he falsely claimed to have filed in her case. In

LAL v. CALIFORNIA 9315
these circumstances, we hold that Spahr acted with gross negligence and that Lal has demonstrated “extraordinary circumstances” beyond her control that merit relief under Rule

60(b)(6).

After expressing doubt about whether Tani should be

applied to grant Rule 60(b)(6) relief from a dismissal for failure to prosecute under Rule 41(b), the district court went on

to deny relief even on the assumption that Tani applied. The

court relied on two grounds.

[8] First, the district court held that Lal had not pursued

Rule 60(b)(6) relief diligently. We disagree. Not quite four

months elapsed between when Lal learned on October 1, 2006

that her case had been dismissed and when she filed her

motion for relief. During all of October, Spahr told her that

he was working on her case. Two weeks after learning that

her case had been dismissed, Lal filed a complaint with the

State Bar. Lal called the State Bar in November and tracked

down the investigator assigned to her complaint. The investigator advised her to get a new attorney. Lal contacted Paula

Canny’s office that same day. Canny took “a couple of

weeks” before deciding not to take the case. Lal then contacted several other attorneys, none of whom agreed to take

her case.

On December 27, 2007, Lal contacted Sydney Fairbairn.

Fairbairn told Lal how to obtain copies of the documents filed

in her case. Lal obtained the documents and met with Fairbairn on January 5, 2008. Fairbairn then acted promptly to

assess Lal’s case. Fairbairn filed a substitution of attorney

motion and a Rule 60(b)(6) motion, accompanied by sworn

statements, on January 25. 

Second, the district court held that Defendants would suffer

significant prejudice if Lal’s Rule 60(b)(6) motion were

granted. Here, too, we disagree. The court relied on a declaration from Professor Robert Bjork, Chair of the Psychology

9316 LAL v. CALIFORNIA
Department at the University of California, Los Angeles.

Bjork specializes in “directed forgetting,” which he describes

as the “forgetting process triggered by an explicit or implicit

instruction that some information presented or studied earlier

should now be forgotten.” Defendants’ counsel had sent

defendants Newman and Otterby letters dated March 22,

2007, informing them that Lal’s case had been dismissed on

the merits and that the dismissal was final because the time

for appealing the order had lapsed. Bjork stated that the dismissal of Lal’s case “served as an unambiguous cue to the

officers that they were free to move on with their lives—and

free to not keep remembering and replaying memories of a

highly traumatic episode that happened almost two years earlier.” Bjork stated that “the officers’ testimony will be lacking

in the color and detail expected of police officers in such situations, meaning, among other things, that it may appear less

credible than it would have had the officers not been lead to

believe that the resolution in their favor was final.” 

Newman and Otterby shot and killed Lal’s husband on

March 6, 2005. Lal’s case was dismissed almost two years

later, on February 2, 2007. On March 22, 2007, Defendants’

counsel informed Newman and Otterby that Lal’s case had

been dismissed. Ten months elapsed between the time they

were informed that the case had been dismissed and the time

Lal filed her Rule 60(b)(6) motion on January 25, 2005. Even

if it is true that Defendants’ memories significantly deteriorated during these ten months, and that this deterioration was

assisted by what Professor Bjork calls “directed forgetting,”

we do not agree with the district court that such a deterioration would constitute sufficient prejudice to warrant denying

Lal’s motion. 

[9] Defendants’ initial disclosures, filed in the district court

in November 2006, make clear that there were eleven CHP

officers besides Newman and Otterby who were “witnesses

on scene at [the] time of the incident.” An undisclosed number of “witness officer interviews” were conducted by yet

LAL v. CALIFORNIA 9317
another CHP officer. The CHP conducted an investigation of

the shooting, and there are tape recorded statements of twelve

CHP officers taken in connection with that investigation.

Finally, there are written transcripts of contemporaneous

statements by both Newman and Otterby. Given this wealth

of evidence, despite whatever “directed forgetting” Newman

and Otterby might have done, Defendants cannot convincingly argue that the evidence in this case has been so compromised as a result of any delay in bringing a Rule 60(b)(6)

motion that they have been substantially prejudiced.

Conclusion

[10] For the foregoing reasons, we hold that Lal’s Rule

60(b)(6) motion for relief from judgment should have been

granted. We reverse the judgment of the district court and

remand for further proceedings. 

REVERSED and REMANDED.

HALL, Circuit Judge, dissenting: 

I agree with the majority that we do not have jurisdiction

to entertain an appeal from the underlying dismissal for failure to prosecute. I must respectfully dissent, however, from

the balance of the majority opinion. I disagree with the majority’s conclusion that the district court abused its discretion in

denying the Rule 60(b) motion. I do not believe that Cmty.

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

to a dismissal for failure to prosecute, and even if it were

applicable, the district court acted within its discretion in

denying Lal’s motion.

I.

The district court assumed arguendo that our decision in

Tani could apply to allow a party relief from judgment in

9318 LAL v. CALIFORNIA
cases of gross attorney negligence in circumstances beyond

default judgments. The majority opinion addresses this issue

directly and approves this extension of Tani. I disagree.

We have never held that Tani applies outside the context of

relief from a default judgment. We have held, to the contrary,

that “[o]ur decision in Tani was explicitly premised upon the

default judgment context of the case.” Latshaw v. Trainer

Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 2006). The

majority circumvents this limitation by concluding that a dismissal for failure to prosecute is the “converse” of a default

judgment, and that the only difference between the two types

of dismissals is the party that suffers the adverse judgment. 

There are important distinctions between dismissals for

failure to prosecute and default judgments. It is a plaintiff’s

burden to prosecute a case, and we have previously stated that

a litigant has “a duty to keep track of the progress of their

lawsuit,” even when represented by counsel. Ringgold Corp.

v. Worrall, 880 F.2d 1138, 1141-42 (9th Cir. 1989). A plaintiff chooses when and where to bring a case, and which claims

to bring, whereas a defendant subject to a default judgment

lacks such fundamental control over a lawsuit and may have

been deprived of the opportunity to respond to allegations

against him or her. 

Accordingly, in Link v. Wabash R.R. Co. the Supreme

Court held that it was proper for a court to dismiss an action

under Rule 41(b) for failure to prosecute where the plaintiff

was not aware of, or was faultless in, the attorney’s negligence:

There is certainly no merit to the contention that dismissal of the petitioner’s claim because of his counsel’s unexcused conduct imposes an unjust penalty

on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot

now avoid the consequences of the acts or omissions

LAL v. CALIFORNIA 9319
of this freely selected agency . . . And if an attorney’s conduct falls substantially below what is reasonable under the circumstances, the client’s remedy

is against the attorney in a suit for malpractice. But

keeping this suit alive merely because the plaintiff

should not be penalized for the omissions of his own

attorney would be visiting the sins of plaintiff’s lawyer upon the defendant. 

370 U.S. 626, 633-634 & n.10 (1962). Even though the plaintiff in Link may have lost the opportunity to recover from the

defendant for his personal injuries, the Supreme Court reasoned that the defendant should not be penalized for the misconduct of plaintiff’s lawyer. The plaintiff’s proper avenue of

relief after a dismissal for failure to prosecute was to seek

damages from his attorney in a malpractice lawsuit. 

Our decision in Tani spells out why a malpractice lawsuit

may be an ineffective remedy for a default judgment, and in

doing so demonstrates why a default judgment is more likely

to have irreparable consequences than a dismissal for failure

to prosecute. Tani was subject to a $2 million default judgment enjoining him from continuing to use his business name.

Even if he were able to recover in a malpractice action some

day in the future, in the interim he might need to sacrifice significant personal and business assets and drastically cut back

on his familial expenses in order to satisfy the judgment. 282

F.3d at 1171-72. The malpractice suit also would not restore

Tani’s ability to use his business name and the intangible

business benefits that ensue from continued use of that name.

Id. at 1172.

The dismissal of Lal’s lawsuit for failure to prosecute, like

the dismissal of the lawsuit in Link, does not raise similar

inequities. As the Supreme Court has indicated, Lal can be

compensated through a malpractice action against her attorney, and she will not be saddled with a substantial money

judgment or injunction in the interim. A plaintiff who has suf9320 LAL v. CALIFORNIA
fered bodily, emotional or economic injuries certainly may be

forced to bear the costs of those injuries until the resolution

of a malpractice suit, but the protracted nature of civil litigation likely would have forced plaintiff to bear these costs had

the initial lawsuit proceeded to a judgment on the merits. The

consequences to Lal of dismissal of her lawsuit for failure to

prosecute do not justify a departure from the usual lawyerclient agency principles set forth in Link, and therefore her

lawyer’s misconduct does not constitute the “extraordinary

circumstances” required for relief under Rule 60(b)(6).

II.

Even if Tani were applicable in the context of dismissal for

failure to prosecute, I do not believe the district court abused

its discretion in its application of Tani. 

A district court abuses its discretion when it applies the

incorrect legal standard or its “application of the correct legal

standard was (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the

record.” United States v. Hinkson, 585 F.3d 1247, 1262 (9th

Cir. 2009) (en banc) (internal citations and quotation marks

omitted). We may not “simply substitute our view for that of

the district court,” and we must be “left with the definite and

firm conviction that a mistake has been committed.” Id. The

majority fails to afford sufficient deference to the judgment of

the district court. 

The district court relied on two primary factors in denying

Lal’s motion: (1) Lal’s four month delay in pursuing the

motion after discovering the dismissal, and (2) prejudice to

defendants.

The majority finds that Lal acted diligently during the four

months between learning of the dismissal of her lawsuit and

filing the Rule 60(b) motion. It first credits Lal’s statement

that she continued to be “represented” and “misled” by Spahr

LAL v. CALIFORNIA 9321
throughout October. This conclusion, however, is at least

arguably belied by her filing a complaint with the State Bar

on October 12, 2007 and by calling another attorney on October 1, 2007 to confirm that Spahr was lying about refiling her

action in state court. The majority next emphasizes Lal’s

efforts to secure a lawyer in November, December and January, yet, as pointed out by the district court, Lal also stated in

her declaration that she would have appeared in court without

her attorney had she known about the hearing her attorney

missed. She filed a pro se complaint against her attorney with

the California bar less than two weeks after learning of the

dismissal, yet she made no contact with the district court in

the four months preceding her Rule 60(b) motion. Lal found

representation just two days after her husband’s death, and

represented to the court that she would have “gotten legal representation elsewhere a long time ago” had she known about

Spahr’s problems. Even though the record might arguably

support the majority’s conclusion that Lal acted diligently, it

also supports the district court’s conclusion to the contrary. 

The district court’s finding of prejudice to defendants is

also supported. It relied primarily on an expert opinion submitted by defendants regarding the effects of memory loss on

the officers’ testimony. Three years had passed since the

shooting of Lal’s husband and almost one year had passed

since the officers were “prompted” to let go of their memories

of the event through notification of the final order of dismissal. Nevertheless, the majority cites to the existence of

several percipient witnesses and contemporaneous interviews

and concludes that “Defendants cannot convincingly argue”

that they would be substantially prejudiced “even if it is true

that Defendants’ memories significantly deteriorated during

these ten months” between dismissal and the Rule 60(b)

motion. Defendants, however, bear no burden of establishing

prejudice. The burden is entirely upon the moving party to

demonstrate “extraordinary circumstances” beyond their control, and the court to evaluate the equities involved. The district court found the expert opinion credible and persuasive,

9322 LAL v. CALIFORNIA
and Lal did not object to the district court’s reliance on the

expert testimony at the hearing. 

We have stated repeatedly that Rule 60(b)(6) motions

should be used sparingly, see, e.g., Latshaw, 452 F.3d at

1103, and the district court acted within its discretion in denying Lal’s motion. The district court was entitled to weigh the

equities as presented by the record before it, and in my view

the majority improperly supplants its own views for the reasoned analysis of the district court.

III.

I would AFFIRM the district court’s denial of Lal’s motion

for relief from the dismissal. Accordingly, I dissent.

LAL v. CALIFORNIA 9323