FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MELISSIA HENSON; KEITH TURNER,

Plaintiffs-Appellants,

v.

FIDELITY NATIONAL FINANCIAL,

INC.,

Defendant-Appellee.

No. 18-56071

D.C. No.

CV 14-1240

ODW

OPINION

Appeal from the United States District Court

for the Central District of California

Otis D. Wright II, District Judge, Presiding

Argued and Submitted June 10, 2019

Anchorage, Alaska

Filed November 15, 2019

Before: A. Wallace Tashima, William A. Fletcher,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Tashima
2 HENSON V. FIDELITY NAT’L FINANCIAL

SUMMARY*

Motion for Relief from Judgment

The panel reversed the district court’s order denying

plaintiffs’ Fed. R. Civ. P. 60(b)(6) motion for relief from

judgment in an action under the Real Estate Settlement

Procedures Act.

Plaintiffs sought relief from judgment based on an

intervening change in the law in Microsoft Corp. v. Baker,

137 S. Ct. 1702 (2017) (holding that plaintiffs in putative

class actions cannot transform a tentative interlocutory order

into a final appealable judgment simply by dismissing their

claims with prejudice). The panel addressed the analysis that

courts should employ to guide their discretion when

evaluating the merits of a Rule 60(b)(6) motion on the ground

of an intervening change in the law in a non-habeas corpus

case. The panel held that many of the factors set out in

Phelps v. Alameida, 569 F.3d 1120 (9th Cir. 2009), a habeas

case, are relevant, but courts must consider all of the relevant

circumstances surrounding a specific motion.

The panel examined the district court’s analysis of the six

Phelps factors, including the nature of the change in the law,

plaintiffs’ diligence in pursuing relief, the parties’ reliance

interest in the finality of the case, the delay between the

judgment and the Rule 60(b)motion, the relationship between

the original judgment and the change in the law, and comity

concerns. The panel also examined additional considerations,

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
HENSON V. FIDELITY NAT’L FINANCIAL 3

such as the importance of heeding the intent of the rulings of

the federal appellate courts, how best to stay true to the

Supreme Court’s reasoning in Microsoft, and the negotiated

nature of the voluntary dismissal in this case. The panel

concluded that the district court’s denial of plaintiffs’ Rule

60(b)(6) motion was an abuse of discretion because it rested

upon an erroneous view of the law as to several significant

factors, and granting relief was appropriate. The panel

reversed and remanded with directions to grant the Rule

60(b)(6) motion and for further proceedings.

COUNSEL

Cyril V. Smith (argued), Zuckerman Spaeder LLP,Baltimore,

Maryland; Taras Kick and Robert J. Dart, The Kick Law Firm

APC, Los Angeles, California; for Plaintiffs-Appellants.

Michael J. Gleason (argued), Hahn Loeser & Parks LLP, San

San Diego, California, for Defendant-Appellee.
4 HENSON V. FIDELITY NAT’L FINANCIAL

OPINION

TASHIMA, Circuit Judge:

Federal Rule of Civil Procedure 60(b)(6) is a grand

reservoir of equitable power that allows courts to grant relief

from a final judgment for “any” reason that “justifies relief.” 

Fed. R. Civ. P. 60(b)(6). In Phelps v. Alameida, 569 F.3d

1120, 1135–40 (9th Cir. 2009), we set out the analysis that

courts should employ to guide their discretion when

evaluating the merits of a Rule 60(b)(6) motion that seeks

relief from the dismissal of a habeas corpus petition on the

ground of an intervening change in the law. However, we

explicitly left open the question of whether the same Rule

60(b)(6) factors we identified in Phelps are also applicable

beyond the habeas corpus context. See id. at 1135 n.19. 

Confronted with the appeal of a district court’s denial of a

Rule 60(b)(6) motion that was also predicated on an

intervening change in the law, but in a non-habeas case that

entails entirely different circumstances than did Phelps, we

now begin to answer that question. While we conclude that

many of the Phelps factors are relevant to the Rule 60(b)(6)

analysis in the present context, we reemphasize that courts

must consider all of the relevant circumstances surrounding

the specific motion before the court in order to ensure that

justice be done in light of all the facts. See id. at 1133.

I

On September 9, 2013, Plaintiffs-Appellants Melissia

Henson and Keith Turner (collectively “Plaintiffs”), two

individuals who participated in separate real estate

transactions, filed this putative class action lawsuit against

Defendant-Appellee Fidelity National Financial, Inc.
HENSON V. FIDELITY NAT’L FINANCIAL 5

(“Fidelity”). Plaintiffs claimed that Fidelity’s practice of

receiving payments from three overnight delivery vendors, in

exchange for referring document delivery business to those

vendors in connection with the settlement of federally related

mortgage loans, violated §§ 8(a) and 8(b) of the Real Estate

Settlement Procedures Act (“RESPA”), Pub. L. No. 93-533,

88 Stat. 1724, 12 U.S.C. § 2607.

Fidelity moved to dismiss the complaint, and the district

court granted the motion as to all claims except for Turner’s

claim under RESPA § 8(a). The district court dismissed all

of Henson’s claims on statute of limitations grounds, and also

dismissed with prejudice both Henson’s and Turner’s claims

under RESPA § 8(b) for failure to state a claim. After filing

an answer, Fidelity moved for judgment on the pleadings with

respect to Turner’s remaining claim under RESPA § 8(a), but

the district court denied that motion.

Turner subsequently moved for class certification. A

week later, Turner moved in the alternative to continue the

hearing on class certification in order to allow discovery on

class certification issues. The district court denied both the

discovery and class certification motions, finding that class

member-specific questions would predominate over any

class-wide inquiries.

Plaintiffs then entered into a detailed, negotiated

stipulation of dismissal with Fidelity. Relying on Ninth

Circuit precedent that permitted a plaintiff to obtain appellate

review of certain interlocutory orders, including an order

denying class certification, by dismissing any active claims

with prejudice, Plaintiffs agreed to voluntarily dismiss the

case with prejudice so that they could appeal both the district

court’s denial of class certification and the partial grant of the
6 HENSON V. FIDELITY NAT’L FINANCIAL

motion to dismiss. See Omstead v. Dell, Inc., 594 F.3d 1081,

1085 (9th Cir. 2010) (“[A] plaintiff that deems an

interlocutory ruling to be so prejudicial as to deserve

immediate review . . . has the alternative of dismissing the

complaint voluntarily with prejudice.” ) (citation omitted);

see also Berger v. Home Depot USA, Inc., 741 F.3d 1061,

1065 (9th Cir. 2014) (“[A] dismissal of an action with

prejudice, even when such dismissal is the product of a

stipulation, is a sufficiently adverse—and thus

appealable—final decision.”). The stipulation provided:

Plaintiffs Keith Turner and Melissia

Henson and Defendant Fidelity National

Financial, Inc., through their undersigned

counsel, hereby stipulate to request dismissal

of the above-captioned case with prejudice

pursuant to Federal Rule of Civil Procedure

41(a)(2), and further stipulate that:

The parties understand that plaintiffs

Turner and Henson will file an appeal to the

dismissal in order to appeal certain of the

Court’s orders, including its order denying

class certification and its order granting (in

part) defendant’s motion to dismiss. See

Omstead v. Dell, Inc., 594 F.3d 1081, 1085

(9th Cir. 2010). If the orders appealed are

affirmed, plaintiffs will take nothing by way

of their complaint. By stipulating to this

dismissal, [Fidelity] does not agree that such

a dismissal establishes appellate jurisdiction

and does not waive its ability to challenge

appellate jurisdiction.
HENSON V. FIDELITY NAT’L FINANCIAL 7

The parties stipulate that by Plaintiffs

voluntarily dismissing their claims with

prejudice, the Court’s April 29, 2014 order on

Defendant’s Motion for Judgment on the

Pleadings is not a final judgment and shall not

provide a basis for collateral estoppel against

Defendant in subsequent litigation.

Plaintiffs agree to reimburse [Fidelity]

$837.96 for certain costs that it has incurred in

this action through the date of the filing of this

stipulation . . . .

It is further agreed that if Plaintiffs or

Plaintiffs’ counsel should re-file the claims at

issue in this lawsuit or file a different lawsuit

based on the same claims and conduct on

behalf of a different Plaintiff(s), any such

claims will be filed in the District Court for

the Central District of California.

The district court entered the parties’ proposed order and

dismissed the complaint with prejudice on the terms provided

in the stipulation. Henson and Turner then timely filed

separate notices of appeal from the final dismissal order. 

Both notices of appeal specifically identified the order

granting in part Fidelity’s motion to dismiss (as to Henson’s

claims and the RESPA § 8(b) claims), and the order denying

class certification, as orders included in the final judgment to

be reviewed on appeal.

After Henson’s and Turner’s appeals were fully briefed,

but before they were calendared for oral argument, the cases

were stayed pending the United States Supreme Court’s
8 HENSON V. FIDELITY NAT’L FINANCIAL

decision in Microsoft Corp. v. Baker, because that case

appeared poised to address some of the appellate jurisdiction

questions raised by Fidelity in Henson’s and Turner’s

appeals. In Microsoft, the district court had similarly granted

a stipulated motion to dismiss with prejudice. The parties had

entered into the stipulation so that the plaintiffs could seek

immediate appeal of the district court’s earlier order striking

consumers’ class allegations. See Microsoft Corp. v. Baker,

137 S. Ct. 1702, 1706–07, 1711–12 (2017). Under the

stipulation, the plaintiffs had “reserved the right to revive

their claims should the Court of Appeals reverse the District

Court’s certification denial.” Id. at 1707. On appeal,

however, Microsoft had challenged appellate jurisdiction,

arguing that the voluntary dismissal could not support

appellate review of the district court’s interlocutory order

striking class allegations. Id. at 1711. The Ninth Circuit

rejectedMicrosoft’s argument, holding that it had jurisdiction

to entertain the appeal under 28 U.S.C. § 1291. Id.

at 1711–12.

On June 12, 2017, nearly three years after Plaintiffs had

filed their stipulated voluntary dismissal, the Supreme Court

issued its decision in Microsoft. The Court held that

“[p]laintiffs in putative class actions cannot transform a

tentative interlocutory order into a final judgment within the

meaning of § 1291 simply by dismissing their claims with

prejudice—subject, no less, to the right to ‘revive’ those

claims if the denial of class certification is reversed on

appeal.” Id. at 1715 (citations omitted). The Court explained

that the tactic of using a stipulated voluntary dismissal to seek

immediate review of an order denying class certification

“undermine[s] § 1291’s firm finality principle” and subverts

Federal Rule of Civil Procedure 23(f), which gives appellate

courts discretion to choose whether to permit immediate
HENSON V. FIDELITY NAT’L FINANCIAL 9

appeals of interlocutory class certification orders. See id.

at 1707, 1712–15. In so holding, the Supreme Court reversed

the Ninth Circuit’s rule—on which Henson and Turner had

relied—that a stipulated voluntary dismissal of a class action

was a sufficiently adverse final order, as long as the

individual plaintiffs’ cases had not settled, to give rise to

appellate jurisdiction to review a district court’s denial of

class certification. See Baker v. Microsoft Corp., 797 F.3d

607, 612 (9th Cir. 2015); see also Berger, 741 F.3d at 1065.

In light of Microsoft, Fidelity moved to dismiss both

Henson’s and Turner’s appeals. Fidelity argued that the

Supreme Court’s rule in Microsoft applied directly and

deprived the Ninth Circuit of jurisdiction over Turner’s

appeal from the denial of class certification. And Fidelity

suggested that the Ninth Circuit also lacked jurisdiction to

hear Henson’s appeal from the district court’s dismissal order

because the Supreme Court’s rule in Microsoft applied

beyond the class certification context and meant that a

voluntary dismissal could never constitute a final order under

§ 1291.

In response, Plaintiffs argued that their case was factually

distinguishable from Microsoft because, before the stipulated

voluntary dismissal of the single remaining claim, the district

court had already involuntarily dismissed all of Henson’s

claims and one of Turner’s claims. Plaintiffs maintained that

the Ninth Circuit had jurisdiction over their appeals because

Microsoft did not overrule cases from “[e]very circuit

permit[ting] a plaintiff, in at least some circumstances,

voluntarily to dismiss remaining claims or remaining parties

from an action to conclude the whole case in the district court

and ready it for appeal.”
10 HENSON V. FIDELITY NAT’L FINANCIAL

A Ninth Circuit motions panel subsequently entered

identical orders in Henson’s and Turner’s appeals, denying

Fidelity’s motions to dismiss and remanding to the district

court. The orders stated:

Appellee’s motion to dismiss this appeal . . .

is denied. In light of the Supreme Court of

the United States’ decision in Microsoft Corp.

v. Baker, the court sua sponte remands this

case to allow the parties to seek appropriate

relief in the district court in the first instance. 

See Microsoft Corp. v. Baker, 137 S. Ct. 1702,

1715 (2017).1

On remand, Fidelity refused to stipulate that the case

should proceed before the district court on Turner’s RESPA

§ 8(a) claim, which had survived Fidelity’s motion to dismiss

and motion for judgment on the pleadings, but which had

been voluntarily dismissed pursuant to the stipulation. As a

result, Plaintiffs moved to vacate the prior dismissal pursuant

to Federal Rule of Civil Procedure 60(b)(6).

In their Rule 60(b) motion, Plaintiffs argued that their

circumstances, including Microsoft’s intervening change in

the law, entitled them to relief from judgment under the

factors set out in Phelps, 569 F.3d at 1135–40, which

addressed Rule 60(b)(6) relief in light of an intervening

change in the law. In addition, Henson argued that even if the

1 The Supreme Court in Microsoft had also remanded the case “for

further proceedings consistent with this opinion.” Microsoft, 137 S. Ct.

at 1715; see also Baker v. Microsoft Corp., 884 F.3d 811, 812 (9th Cir.

2018) (remanding to the district court “for further proceedings consistent

with the opinion of the Supreme Court”).
HENSON V. FIDELITY NAT’L FINANCIAL 11

district court declined to vacate the dismissal order and revive

the entire case, it should nonetheless grant her more limited

relief by entering a new final judgment from which she could

appeal the court’s earlier involuntary dismissal of her claims,

because the Ninth Circuit had not addressed the merits of her

prior appeal and it would be manifestly unjust under the

circumstances to nullify her right to appeal altogether.

The district court denied the Rule 60(b) motion. 

Applying the Phelps framework to the intervening change of

law argument, the district court ruled that the six factors set

out in Phelps did not warrant relief. The district court did not

address Henson’s separate argument that denying her relief

from judgment would have the effect of unfairly nullifying

her right to appeal the district court’s earlier involuntary

dismissal of her claims. Plaintiffs timely appealed.

II

We have jurisdiction under 28 U.S.C. § 1291, and we

review the denial of a motion for relief from judgment under

Rule 60(b) for an abuse of discretion. Phelps, 569 F.3d at

1131. “[T]he district court necessarily abused its discretion

if its denial ‘rested upon an erroneous view of the law,’” id.

(quoting Faile v. Upjohn Co., 988 F.2d 985, 986–87 (9th Cir.

1993)), or on a “clearly erroneous finding of material fact,”

Casey v. Albertson’s, Inc., 362 F.3d 1254, 1257 (9th Cir.

2004). Otherwise, we may not reverse “absent a definite and

firm conviction that the district court committed a clear error

of judgment in the conclusion it reached upon a weighing of

relevant factors.” Valdivia v. Schwarzenegger, 599 F.3d 984,

988 (9th Cir. 2010).
12 HENSON V. FIDELITY NAT’L FINANCIAL

III

Rule 60(b)(6) provides that, “[o]n motion and just terms,

the court may relieve a party or its legal representative from

a final judgment, order, or proceeding for . . . any . . . reason

that justifies relief.”

2 Fed. R. Civ. P. 60(b)(6). This clause

“gives the district court power to vacate judgments ‘whenever

such action is appropriate to accomplish justice.’” United

States v. Sparks, 685 F.2d 1128, 1130 (9th Cir. 1982)

(quoting Klapprott v. United States, 335 U.S. 601, 615

(1949)); see also Fleming v. Gulf Oil Corp., 547 F.2d 908,

912 (10th Cir. 1977) (explaining that Klapprott, 335 U.S.

at 614, shows that, “[l]ike Rule 60(b) generally, clause

(6) should be liberally applied to situations not covered by the

preceding five clauses so that, giving due regard to the sound

interest underlying the finality of judgments, the district

court, nevertheless, has power to grant relief from a judgment

whenever, under all the surrounding circumstances, such

action is appropriate in the furtherance of justice” (quoting

7 Moore’s Federal Practice at 342–43 (2d ed. 1975))). 

However, “[a] movant seeking relief under Rule 60(b)(6)

must show ‘“extraordinary circumstances” justifying the

reopening of a final judgment.’” Jones v. Ryan, 733 F.3d

825, 833 (9th Cir. 2013) (quoting Gonzalez v. Crosby,

545 U.S. 524, 535 (2005)).

Plaintiffs argue that the effect on their case of Microsoft’s

intervening change in the law presents extraordinary

circumstances warranting relief. They point to the fact that

2 As relevant here, a voluntary dismissal qualifies as a “judgment,

order, or proceeding from which Rule 60(b) relief can be granted.” Kalt

v. Hunter (In re Hunter), 66 F.3d 1002, 1004 (9th Cir. 1995) (citations

omitted).
HENSON V. FIDELITY NAT’L FINANCIAL 13

Microsoft’s intervening change in the law caused the Ninth

Circuit to remand rather than address the merits of their

appeals, and that denying relief from judgment would

therefore convert the stipulation—entered into three years

before Microsoft and “intended to be a conditional dismissal

(to allow appellate review)”—into an “irrevocable” dismissal

without any opportunity for appellate review on the merits.3

In other words, denying Rule 60(b) relief would treat the

voluntary dismissal, which was intended to facilitate

appellate review, as a final adjudication of the entire case,

even though there had been and was to be no appellate review

3 Plaintiffs argued in the district court that these circumstances are all

the more extraordinary because of their timing. They explained:

The appeal had been fully briefed before the Ninth

Circuit months before the Supreme Court granted

certiorari in Microsoft. The timing of the Supreme

Court’s ruling in Microsoft deprived the Ninth Circuit

of jurisdiction over Plaintiffs’ appeal at the absolute

worst time. Had it been issued earlier, Plaintiffs would

have never agreed to dismiss their claims. Later, and

Plaintiffs’ appeal of the District Court’s denial of class

certification would have been resolved on the merits. 

Instead, Plaintiffs were caught in a small window of

time, with their appeal pending, where the abrogation

of Omstead, Berger, and Baker threatens to deny them

their right to appeal the Court’s rulings altogether. In

other words, the intervening change in law, and the

timing of that change, have worked together to

threaten truly catastrophic damage to Plaintiffs’

claims—leaving Plaintiffs deprived of their right to

appeal the class certification ruling altogether, as well

as depriving Plaintiff Henson of her right to appeal the

District Court’s order dismissing all of her claims based

upon the statute of limitations. This is exactly the sort

of “extraordinary circumstance” warranting relief under

Rule 60(b)(6).
14 HENSON V. FIDELITY NAT’L FINANCIAL

of the issues the district court had decided, then or later. 

Doing so would end the case in a manner that deprives

Plaintiffs of any opportunity to obtain appellate review of the

district court’s earlier dismissal and class certification orders,

because Plaintiffs’ time to appeal the original judgment has

run, and an appeal from the denial of a Rule 60(b) motion

brings up for review only the denial of that motion, but not

the underlying judgment.

4

See Fed. R. App. P. 4(a)(1)(A);

Harman v. Harper, 7 F.3d 1455, 1458 (9th Cir. 1993). 

Plaintiffs therefore contend that Microsoft’s change in the law

provides a basis under Rule 60(b)(6) for vacating the

voluntary dismissal order.

We have previously recognized that a change in the

controlling law can— but does not always—provide a

sufficient basis for granting relief under Rule 60(b)(6). See

Phelps, 569 F.3d at 1132–33. To assess a Rule 60(b)(6)

motion “predicated on an intervening change in the law,” a

district court must “evaluate the circumstances surrounding

the specific motion before the court.” Id. at 1133. This

“case-by-case inquiry . . . requires the trial court to

intensively balance numerous factors, including the

competing policies of the finality of judgments and the

incessant command of the court’s conscience that justice be

done in light of all the facts.” Id. (quoting Stokes v. Williams,

475 F.3d 732, 736 (6th Cir. 2007)).

In Phelps, in the context of a Rule 60(b) motion that

sought relief from the dismissal of a habeas petition on the

4 The Federal Rules provide an exception to this rule by extending the

time to appeal from the judgment if the Rule 60 motion is filed within

28 days of entry of judgment, but that exception does not apply here. See

Fed. R. App. P. 4(a)(4)(A)(vi).
HENSON V. FIDELITY NAT’L FINANCIAL 15

basis of a change in the law, we identified six factors as being

“well-reasoned principles that should guide courts in

exercising their discretion under Rule 60(b)(6).” Id. at 1140. 

We cautioned, however, that our discussion of those factors

was not meant to “impose a rigid or exhaustive checklist,”

because “‘Rule 60(b)(6) is a grand reservoir of equitable

power,’ and it affords courts the discretion and power ‘to

vacate judgments whenever such action is appropriate to

accomplish justice.’” Id. at 1135 (first quoting Harrell v.

DCS Equip. Leasing Corp., 951 F.2d 1453, 1458 (5th Cir.

1992); then quoting Gonzalez, 545 U.S. at 542). Moreover,

we noted that “while some of the factors we emphasize here

may be useful in contexts other than the one before us, we

express no opinion on their applicability vel non beyond the

scope of habeas corpus.” Id. at 1135 n.19 (italics omitted);

see also Jones, 733 F.3d at 839 (“[The Phelps] factors are

particularly useful when, as here, we are asked to apply Rule

60(b)(6) to a rejected petition for habeas corpus.”).

The district court here nevertheless analyzed the six

Phelps factors, and only those factors, in the instant nonhabeas context to determine whether the circumstances of this

case, including the change in the controlling law effected by

Microsoft, were sufficiently extraordinary to warrant relief

under Rule 60(b)(6). Weighing all those “relevant” factors

together, the district court “conclude[d] that the

circumstances d[id] not warrant relief pursuant to Rule

60(b)(6).”

Plaintiffs argue on appeal that the district court’s denial

of Rule 60(b)(6) relief constituted an abuse of discretion. 

They contend that the district court erred in its analysis of the

Phelps change-in-the-law factors by assuming that Plaintiffs

were at fault for their predicament, and therefore by “[giving]
16 HENSON V. FIDELITY NAT’L FINANCIAL

no weight to, or even count[ing] against them, [Plaintiffs’]

legitimate reliance on the settled law of this Circuit and [the

Ninth Circuit’s] decision to remand rather than to dismiss the

appeals.” According to Plaintiffs, the district court’s flawed

assumption—contrary to the terms of the parties’

stipulation—that Fidelity was entitled to rely on the finality

of the judgment, based on the expectation that Ninth Circuit

precedent would be overruled, tainted the district court’s

analysis of three of the six Phelps factors.5

To determine whether the district court abused its

discretion and to demonstrate the case-by-case inquiry

required by Rule 60(b)(6), we examine the district court’s

analysis of each of the Phelps factors sereatim. In doing so,

we address the question left open by Phelps: the extent to

which, and in what manner, those factors may be relevant to

assessing a Rule 60(b)(6) motion in a non-habeas context. 

Relatedly, we also highlight additional considerations, such

as the import of Microsoft’s reasoning and the parties’

stipulation, that are not addressed by the Phelps factors, but

that nonetheless are relevant to the Rule 60(b)(6)

determination in this case. See Phelps, 569 F.3d at 1133

(directing that courts evaluate all the circumstances

5 Henson also argues that, as to her specifically, the district court

abused its discretion by denying her relief from judgment without

addressing her argument that denying relief would have the effect of

stripping her of the right to appeal the court’s earlier involuntary dismissal

of her claims, notwithstanding the fact that she had timely appealed to the

Ninth Circuit and found herself in this unusual procedural posture through

no fault of her own simply because her appeal of the dismissal order

became entangled with Turner’s appeal of the class certification denial. 

This argument may well have merit, but because the change-in-law

argument is dispositive as to both Henson and Turner, we need not address

it.
HENSON V. FIDELITY NAT’L FINANCIAL 17

surrounding the specific Rule 60(b)(6) motion before the

court). We note that particularly where, as here, a district

court is faced with applying our previously-discussed Rule

60(b)(6) factors in an entirely new context, the court should

assess how that different context might alter the calculus of

the factors’ application, and whether those factors adequately

capture all of the relevant circumstances. As we emphasized

in Phelps, the factors identified in that case were not intended

to be a rigid or exhaustive list; a court’s ultimate charge in

evaluating a Rule 60(b)(6) motion remains to “intensively

balance” all the relevant factors, “including the competing

policies of the finality of judgments and the incessant

command of the court’s conscience that justice be done in

light of all the facts.” See id. at 1133, 1135.

1. The Change in the Law

The first Phelps factor considers the nature of the

intervening change in the law. See id. at 1135–36; see also

Jones, 733 F.3d at 839. For example, in Phelps we had to

decide whether to grant relief from dismissal of a habeas

petition where, fifteen months after the petitioner’s

unsuccessful appeal of the dismissal became final, the Ninth

Circuit favorably changed the law on which the petition’s

dismissal had been predicated. 569 F.3d at 1126–27, 1131. 

We determined that the post-judgment “change in the law . . .

did not upset or overturn a settled legal principle” because

“the law in our circuit was decidedly unsettled at the time

Phelps’ habeas petition was before the district court.” Id. at

1136 (italics omitted). We concluded that this circumstance

favored granting relief, because it meant that the dismissal of

Phelps’ petition had not been based on a “prevailing

interpretation” of the relevant statute, and in fact the change

in the law adopted the legal position that Phelps had
18 HENSON V. FIDELITY NAT’L FINANCIAL

unsuccessfully advocated all along in his habeas proceedings. 

See id.

We see no reason why such equitable considerations

related to the nature of the change in the law would not also

be relevant to assessing whether Rule 60(b)(6) relief is

warranted in a non-habeas context. We note, however, that

the circumstances of the instant case are nearly the opposite

of those considered in Phelps. Rather than seeking the

benefit of a favorable change in the law as Phelps did,

Plaintiffs here seek relief from an unfavorable change in the

law that Plaintiffs claim has “the disastrous and

fundamentally unjust consequence” of leaving them with the

burdens of the parties’ negotiated stipulation, but none of the

benefits. Because of these contrasting circumstances, the

nature of a change in the law that may equitably weigh in

favor of granting Rule 60(b)(6) relief here is likely to be

different than it was in Phelps. For example, while the fact

that the relevant Ninth Circuit law was “decidedly unsettled”

cut in favor of relief in Phelps, here the fact that the relevant

Ninth Circuit law was relatively settled may cut in favor of

relief because it makes Plaintiffs’ reliance on that law more

reasonable.

Thus, while we conclude that the change in the law factor

is also applicable in non-habeas cases, we note that courts

considering this factor should not in rote fashion rely on the

conclusion from a different context that any particular type of

change in the law favors or disfavors relief. Instead, a district

court should weigh whether the specific nature of the change

in the law in the case before it makes granting relief more or

less justified under all of the circumstances, and should

support its conclusion with a reasoned explanation grounded

in the equitable considerations raised by the case at bench.
HENSON V. FIDELITY NAT’L FINANCIAL 19

Here, the district court concluded that the nature of

Microsoft’s change in the law—namely, overruling precedent,

on which Plaintiffs had relied, that was settled in the Ninth

Circuit but not nationwide—weighed “slightly against”

granting Rule 60(b) relief, because Fidelity had warned that

it would challenge appellate jurisdiction, meaning that

Plaintiffs were apprised of the risk of an adverse decision, but

still chose to voluntarily dismiss their case. The district court

further pointed out that the circumstances of the change in the

law were “hardly extraordinary” because the change involved

a resolution of a circuit split by the Supreme Court. Plaintiffs

challenge the district court’s weighing of this factor, arguing

that they were entitled to rely on then-settled circuit

precedent, and that the district court therefore abused its

discretion by treating the voluntary dismissal as a reckless

gamble for which Plaintiffs should suffer the consequences

despite their reasonable reliance on settled circuit law.

We hold that the district court’s conclusion was an abuse

of discretion, as this factor was more properly viewed as

neutral or slightly favoring Plaintiffs. It was not

unreasonable for the district court to consider the extent to

which Plaintiffs took a knowing and calculated risk by

relying on Circuit precedent to voluntarily dismiss their case

with prejudice, but the district court overlooked important

competing considerations in reaching its evaluation.

On the one hand, unlike cases such as Phelpsin which the

court must decide whether to reopen a case to grant the

benefit of a favorable change in the law, here the court had to

assess whether to grant relief in the context of an unfavorable

change in the law that seemingly prejudiced Plaintiffs by

altering the intended effect of their previously-negotiated
20 HENSON V. FIDELITY NAT’L FINANCIAL

stipulation.6 Because granting relief from judgment under

Rule 60(b)(6) is largely an equitable decision, it makes sense

to consider whether Plaintiffs were blindsided by the change

in law and could not have done anything to avoid its

prejudicial effect, or whether the predicament they face is the

result of their knowingly taking a calculated risk for which

they should be held responsible.

To illustrate, analyzing whether Plaintiffs, equitably,

should suffer the consequences of the unfavorable change in

the law might reasonably involve considering:

(1) the extent to which the precedent upon which Henson and

Turner relied was settled in the Circuit, which would

make the reliance more reasonable (favors Plaintiffs

because there was clear Circuit precedent);

(2) the extent to which Henson and Turner should have

known that the law might change in an unfavorable way

(neutral or slightly favors Plaintiffs because the Supreme

Court had not yet even granted certiorari in Microsoft,

and Plaintiffs reasonably relied on well-established Ninth

Circuit law. Compare Omstead, 594 F.3d at 1085;

Berger, 741 F.3d at 1065, with Microsoft Corp. v. Baker,

135 S. Ct. 890 (2016) (granting petition for a writ of

certiorari));

6

In their briefing, Plaintiffs assert that this case presents “a question

of correcting the manifest injustice in enforcing the dismissal term of a

stipulation when the application of a change in the law to a pending appeal

has invalidated the essence of the agreement on which the judgment of

dismissal is based.”
HENSON V. FIDELITY NAT’L FINANCIAL 21

(3) the nature of the risk Henson and Turner knowingly took

(slightly favors Plaintiffs because even if Henson and

Turner knew that they risked an adverse decision

regarding their early appeal if Fidelity succeeded in

challenging appellate jurisdiction, that does not mean

they knowingly risked permanent finality. Fidelity did

not state that its position would be that the case was

entirely over if there was no appellate jurisdiction; the

only understanding incorporated in the stipulation was

that finality depended on losing the appeal on the merits;

(4) the extent to which Plaintiffs were forced to rely on the

precedent and put themselves in a precarious situation for

lack of other reasonable options that would have avoided

the risk (favors Fidelity because Plaintiffs had a choice

about which procedure to use: entering a voluntary

dismissal, petitioning the district court to certify the

interlocutory order for appeal pursuant to 28 U.S.C.

§ 1292(b), requesting permission to file an interlocutory

appeal under Federal Rule of Civil Procedure 23(f), or

proceeding on Turner’s individual claim and again

requesting class certification at a later stage,7see

Microsoft, 137 S. Ct. at 1711); and

7

 This array of available choices distinguishes this case from United

States v. Foster, 783 F.2d 1082 (D.C. Cir. 1986), on which Plaintiffs rely

for their argument that a litigant is justified in relying on existing circuit

precedent “even when it is subjected to criticism and (in retrospect)

destined to be overturned.” In Foster, the court decided to apply a change

in a criminal procedure rule only prospectively, because the criminal

defendant’s reliance on the previously settled circuit law was not only

“reasonable,” but “the only responsible course,” such that it would be

unfair to “change the ground rules after the trial.” Id. at 1086 (emphasis

added).
22 HENSON V. FIDELITY NAT’L FINANCIAL

(5) the extent to which the circumstances surrounding the

change in law were extraordinary (perhaps neutral or

slightly favors Plaintiffs, because although the timing of

Microsoft was somewhat extraordinary in its effect on

this case, cf. Phelps, 560 F.3d at 1127 (noting that if the

intervening change in the law had been made “a few

months earlier,” the habeas petition at issue “would have

been remanded to the district court for a decision on the

merits”), Microsoft was an otherwise routine Supreme

Court decision resolving an open circuit split).

In light of these relevant considerations, the district court

properly determined that the nature of the change in the

law—the abrogation of settled Ninth Circuit precedent by the

Supreme Court’s resolution of a circuit split—meant that

Plaintiffs knowingly accepted some risk of an unfavorable

change in the law.

On the other hand, the district court failed to factor in the

consideration that litigants are entitled to rely on wellestablished circuit law as to which, at the time of reliance,

there was no case pending in the Supreme Court either on a

petition for writ of certiorari or on the merits. Although there

is always the possibility that a well-established rule of this

court will be abrogated by the Supreme Court, it is not in this

Court’s institutional interest, or that of the litigants before it,

to fault lawyers who proceed on the basis that an established

procedural rule will remain intact, absent some tangible

indication (such as a pending Supreme Court case) that it may

not. Additionally, the district court should have considered

the specific risk that Plaintiffs knowingly undertook. There

is a difference between risking an adverse decision on the

issue of appellate jurisdiction and the opportunity for an early

appeal, and knowingly risking permanent finality. Weighing
HENSON V. FIDELITY NAT’L FINANCIAL 23

the relevant considerations outlined above, the change-in-thelaw factor is neutral or slightly favors granting Rule 60(b)

relief. It was an abuse of discretion for the district court to

conclude otherwise.

2. Plaintiffs’ Diligence In Pursuing Relief

The second Phelps factor is the petitioner’s exercise of

diligence in pursuing his claim for relief. See Phelps,

569 F.3d at 1135–36; see also Jones, 733 F.3d at 839. In

Phelps, we concluded that the petitioner was diligent because

he had pursued “all possible avenues” in advocating for his

legal position, including securing a certificate of

appealability, filing petitions for rehearing en banc and

certiorari, and filing motions for reconsideration. See Phelps,

569 F.3d at 1136–37. Here, the district court concluded that,

although Plaintiffs were diligent in requesting relief from

judgment on remand, the diligence factor was neutral because

Plaintiffs did not initially seek reconsideration of the class

certification denial, or request that the district court certify an

interlocutory appeal, before they proceeded to voluntarily

dismiss their case. In reaching this conclusion, the district

court adopted Fidelity’s interpretation that the diligence

factor pertained to “Plaintiffs’ diligence (or lack thereof) in

pursuing relief over the entire course of this litigation.” 

Plaintiffs challenge this interpretation, maintaining that their

earlier strategic decision to voluntarily dismiss “has nothing

to do with the diligence factor,” and that the district court

therefore again inappropriately penalized them for relying on

settled circuit precedent when they opted to voluntarily

dismiss their case.

Once again, the different circumstances in this case as

compared to Phelps affect the application and relevance of
24 HENSON V. FIDELITY NAT’L FINANCIAL

the instant factor. In Phelps, because the petitioner sought the

benefit of a favorable change in the law, the fact that the

petitioner had been diligent in advancing the legal position

that was ultimately adopted by that change in the law was

relevant to the equitable considerations implicated by a Rule

60(b)(6) motion. See id.; see also Gonzalez, 545 U.S.

at 537–38 (considering diligence in terms of petitioner’s

efforts to pursue review of the legal issue on which he later

requested relief). Here, however, Plaintiffs of course were

not advocating for Microsoft’s unfavorable change in the law,

and thus the factor does not quite have the same pertinence. 

Perhaps the corollary consideration in this context is

Plaintiffs’ diligence in attempting to avoid or mitigate the risk

of the unfavorable change in the law from which they now

seek relief. From that perspective, it was not entirely

unreasonable under the circumstances for the district court to

consider not only Plaintiffs’ diligence in moving for relief

from judgment, but also their failure to seek reconsideration

of the class certification denial or request that the district

court certify an interlocutory appeal before choosing to

voluntarily dismiss their case.8 On the other hand, unlike in

Phelps, a motion for reconsideration or for certification of an

interlocutory appeal would not have directly addressed the

area of law that was later changed by Microsoft. 

Furthermore, it may be the case that Plaintiffs did not pursue

those other avenues because they did not believe they had a

8 We disagree, however, with the district court’s broad phrasing that

Plaintiffs’ general diligence over the entire course of the litigation is

necessarily relevant to the Rule 60(b)(6) determination. Although the

Phelps court discussed a lengthy timeline of events in considering Phelps’

diligence, all of those events related to the legal basis on which Phelps

later sought relief from judgment. See Phelps, 569 F.3d at 1136–37. 

Thus, the diligence to be considered should bear a relationship to the relief

requested in the Rule 60(b)(6) motion.
HENSON V. FIDELITY NAT’L FINANCIAL 25

sufficient basis to file such motions; courts should be cautious

to count against a party seeking Rule 60(b)(6) relief the

failure to file certain motions, unless the court can determine

that filing such a motion would not have been an utter

exercise in futility.

Thus, while the district court did not abuse its discretion

in assessing the diligence factor and concluding that it was

neutral, we note that under the circumstances the factor

appears to be less salient to the overall Rule 60(b)(6)

equitable balancing than it was in Phelps.

3. Reliance Interest in the Finality of the Case

The third factor we considered in Phelps is whether

granting the Rule 60(b) motion for relief from judgment

would upset “the parties’ reliance interest in the finality of the

case.” Phelps, 569 F.3d at 1137; see also Jones, 733 F.3d at

839–40. In this case, the district court concluded that the

parties’ interest in finality weighed against granting relief

because there could be “no question . . . of the parties’

intention regarding finality in entering into the stipulation to

dismiss this case.” Plaintiffs challenge this conclusion,

arguing that Fidelity had no reliance interest in the finality of

the stipulation-based judgment because the stipulation

explicitly contemplated the potential for subsequent litigation,

and stated that Plaintiffs would take nothing only if both of

the appealed district court orders were affirmed, which never

happened.

We agree with Plaintiffs and hold that the district court

misconstrued this factor and overvalued Fidelity’s reliance

interest in the finality of the judgment. First, the district court

only considered Fidelity’s abstract interest in finality, but not,
26 HENSON V. FIDELITY NAT’L FINANCIAL

as Phelps instructed, whether Fidelity had any reliance

interest in the finality of the judgment. In Phelps, we

explained that courts should consider whether “the final

judgment being challenged has caused one or more of the

parties to change his legal position in reliance on that

judgment” such that granting the motion for relief would

“undo the past, executed effects of the judgment.” Phelps,

569 F.3d at 1137–38 (citation omitted). For example, a party

might have a reliance interest in the finality of a judgment

“when a judgment conveys land from one party to another

and the prevailing party ‘enter[s] upon the land and install[s]

pipes and appurtenances,’” or “when a judgment affords a

federal habeas petitioner a new trial that results in the

eventual dismissal of the charges and his release from

custody.” Id. (alterations in original) (italics omitted)

(quoting Ritter v. Smith, 811 F.2d 1398, 1401 (11th Cir.

1987)). Here, however, there is no evidence that Fidelity

“has relied in such a fashion on the finality of the district

court’s dismissal.” Id. at 1138. As in Phelps, “[t]here are no

‘past effects’ of the judgment that would be disturbed if the

case were reopened for consideration of the merits . . . . 

Instead, the parties would simply pick up where they left off.” 

Id. Thus, as in Phelps, this factor should “weigh[] heavily in

[Plaintiffs’] favor.” Id.

Furthermore, the finality interest in this case is even

weaker than that in Phelps because, here, Plaintiffs’ appeal

had not been finally decided before Microsoft changed the

law. See id. at 1126 (explaining that Phelps’ appeal had

become final fifteen months before the change in the law that

prompted his Rule 60(b)(6) motion). Because the present

case was still pending on appeal when Microsoft was decided,

and was then remanded to the district court for further

proceedings, Fidelity could not reasonably have believed that
HENSON V. FIDELITY NAT’L FINANCIAL 27

the dismissal was immutably final. Moreover, the dismissal

itself belies any reliance interest in finality, because the

dismissal was explicitly linked to an attempt to expedite the

appeal. The parties’ stipulation contemplated that Plaintiffs’

claims would be revived and that litigation would continue in

the district court if the Ninth Circuit reversed either or both

of the appealed orders.9 And, although Fidelity reserved the

right to argue that the immediate appeal was improper, it

could not have relied on prevailing on that challenge, as

Ninth Circuit law at the time was squarely against its

position.

It was this very opportunity for revival of claims and

subsequent litigation that led the Court in Microsoft to

conclude that this type of conditional voluntary dismissal is

not, in fact, “final.” See Microsoft, 137 S. Ct. at 1715. 

Plaintiffs persuasively argue that, “[i]f class certification

orders are not appealable because a voluntary dismissal

intended to be subject to revival is not really a final

judgment, then there is little finality interest in the dismissal

and there is every reason to allow vacatur of such preMicrosoft dismissals . . . .” Thus, even after Microsoft, there

9 Not only did the stipulation contemplate continued litigation if

Plaintiffs succeeded in their appeals, but Plaintiffs argue that, even if

Fidelity prevailed on its jurisdictional challenge and succeeded in having

the appeals dismissed, Fidelity could not have expected that the stipulated

dismissal order would become final, because the stipulation provided only

that Plaintiffs would take nothing if both of the district court’s orders were

affirmed on appeal. The text of the stipulation further belies a finality

interest because it explicitly states that, “by Plaintiffs voluntarily

dismissing their claims with prejudice, the Court’s April 29, 2014 order

on Defendant’s Motion for Judgment on the Pleadings is not a final

judgment and shall not provide a basis for collateral estoppel against

Defendant in subsequent litigation.”
28 HENSON V. FIDELITY NAT’L FINANCIAL

was no reason to anticipate that the voluntary dismissal would

be treated as final, without either an opportunity to revive

Turner’s voluntarily dismissed claim in the district court, or

appellate review of the involuntary dismissal of Henson’s

claims and the class certification order.

The district court’s contrary analysis of Fidelity’s reliance

interest in the finality of the dismissal therefore ignored key

considerations, failed to follow our guidance in Phelps, and

was unsupported by the facts. The district court’s conclusion

that this factor “weighs against granting Rule 60(b) relief”

was an abuse of discretion. Fidelity has not shown any

reliance interest in the finality of the judgment, and the appeal

of the judgment was still pending when Microsoft was

decided; this was not a case in which a party relied on the

finality of a judgment after an appeal had become final and

litigation had ended months or even years before a change in

the law prompted a Rule 60(b) motion. As a result, whether

relief from the judgment would upset “the parties’ reliance

interest in the finality of the case” weighs heavily in favor of

granting relief. See Phelps, 569 F.3d at 1137.

4. Delay Between the Judgment and the Rule 60(b)

Motion

The fourth Phelps factor “examines the ‘delay between

the finality of the judgment and the motion for Rule 60(b)(6)

relief.’” Phelps, 569 F.3d at 1138 (quoting Ritter, 811 F.2d

at 1402). “This factor stands for the ‘principle that a change

in the law should not indefinitely render preexisting

judgments subject to potential challenge.’” Jones, 733 F.3d

at 840 (quoting Phelps, 569 F.3d at 1138). The district court

found that the delay factor was neutral because, although the

Rule 60(b) motion was filed 3.5 years after the voluntary
HENSON V. FIDELITY NAT’L FINANCIAL 29

dismissal, “the parties were actively involved in the appellate

proceedings and were seeking resolution before the Ninth

Circuit in [the] time immediately after the Court dismissed

the case.” Plaintiffs do not challenge this determination, but

we make one brief correction. The district court’s use of the

date on which the voluntary dismissal was entered in the

district court, rather than when any appeal of that dismissal

became final, does not follow the guidance we set forth in

Phelps. See Phelps, 569 F.3d at 1138 n.21 (“[W]e consider

the length of time between when the original judgment . . .

became final after appeal, and the time at which [a party]

filed [its] first motion [for Rule 60(b)(6) relief].” (emphasis

added) (citing Fed. R. App. P. 41)). In this case, the

judgment never truly became final on appeal, and in any case,

Plaintiffs moved for relief shortly after the Ninth Circuit

remanded the case to the district court. As a result, when

properly applied, the delay factor weighs in favor of granting

Rule 60(b)(6) relief. See id. at 1138.

5. Relationship Between the Original Judgment and the

Change in the Law

The fifth Phelps factor “looks to the closeness of the

relationship between the decision resulting in the original

judgment and the subsequent decision that represents a

change in the law.” Jones, 733 F.3d at 840 (citing Phelps,

569 F.3d at 1138–39). As we explained in Phelps, this factor

recognizes the ever-changing nature of the law and seeks to

measure whether any particular change is extraordinary under

the circumstances as a result of a direct relationship to the

original judgment:

[T]his factor is designed to recognize that the

law is regularly evolving. The foundation of
30 HENSON V. FIDELITY NAT’L FINANCIAL

the American judicial system that sets it apart

from many regimes across the world is its

common law heritage, which is immanent in

judicial interpretations of legal texts ranging

from statutes to judicial opinions to the

Constitution itself. Given this tradition, legal

rules and principles inevitably shift and

evolve over time, but the mere fact that they

do so cannot upset all final judgments that

have predated any specific change in the law. 

Rather, the nature of that change is important. 

Accordingly, [this] factor directs courts to

examine closely the original and intervening

decisions at issue in a particular motion for

[Rule 60(b)] relief predicated on an

intervening change in the law: if there is “a

close connection between the two cases, the

court [will be more likely to] f[i]nd the

circumstances sufficiently extraordinary to

justify disturbing the finality of the [original]

judgment.”

Phelps, 569 F.3d at 1139 (footnote omitted) (alterations in

quote in original) (quoting Ritter, 811 F.2d at 1402). The

district court found that the “close connection between

Plaintiffs’ underlying case and [Microsoft]” weighed in favor

of granting relief, and Plaintiffs do not challenge this

determination. We agree with the district court both that

there is a close connection between the original judgment and

Microsoft, because the voluntary dismissal was explicitly

predicated on the law that Microsoft changed, and that this

factor therefore weighs in favor of Rule 60(b)(6) relief.
HENSON V. FIDELITY NAT’L FINANCIAL 31

6. Concerns of Comity

The sixth Phelps factor considers concerns of comity. 

Jones, 733 F.3d at 840 (citing Phelps, 569 F.3d at 1139). In

Phelps, we ruled that this factor cut in favor of relief because

the dismissal of Phelps’ habeas petition had been on

procedural grounds, which meant that granting relief fromthe

dismissal would not upend the comity principle. See Phelps,

569 F.3d at 1139 (“[I]n the context of Rule 60(b)(6), we need

not be concerned about upsetting the comity principle when

a petitioner seeks reconsideration not of a judgment on the

merits of his habeas petition, but rather of an erroneous

judgment that prevented the court from ever reaching the

merits of that petition.”).10

The district court found that the comity factor weighed

against granting Rule 60(b) relief because the predicament in

which Plaintiffs found themselves was the result of their free,

calculated, and deliberate trial strategy. Plaintiffs challenge

this analysis, claiming that the district court again faulted

them for relying on Circuit law.

We agree that the district court erred in its analysis of the

comity factor; the district court’s decision that this factor

weighed against relief rested upon an erroneous view of what

considerations are relevant to the principle of comity. In

particular, it is unclear that there is any relationship between

the fact that Plaintiffs may have made a calculated decision

10 Furthermore, we noted that the habeas statute was aimed at

ensuring that federal courts could protect constitutional rights, and that

“[t]he delicate principles of comity governing the interaction between

coordinate sovereign judicial systems do not require federal courts to

abdicate their role as vigilant protectors of federal rights.” Id. at 1139.
32 HENSON V. FIDELITY NAT’L FINANCIAL

to voluntarily dismiss their case despite the potential

consequences and principles of comity. The district court

cited no Ninth Circuit precedent suggesting that this is an

appropriate consideration under the comity factor, nor do we

see why it is relevant.11In fact, considerations of comity

“between the independently sovereign state and federal

judiciaries” that we discussed in Phelps do not apply here at

all, because this case does not involve a federal habeas

petition that challenges a state conviction. See Phelps,

569 F.3d at 1139 (“[I]n applying Rule 60(b)(6) to cases

involving petitions for habeas corpus, judges must bear in

mind that [a] federal court’s grant of a writ of habeas

corpus . . . is always a serious matter implicating

considerations of comity.” (internal quotation marks and

italics omitted)). As a result, the district court’s finding that

the comity factor weighed against relief was an abuse of

discretion. The district court instead should have skipped the

Phelps comity factor as inapplicable.

7. Additional Considerations

Instead of comity between the federal and state courts, the

district court could have considered a somewhat analogous

issue that is more relevant here, namely, the importance of

heeding the intent of the rulings of federal appellate courts. 

Cf. id. at 1133, 1135 (explaining that the Phelps factors do

not “impose a rigid or exhaustive checklist”—a district court

must “evaluate the circumstances surrounding the specific

motion before the court” to ensure that “justice [is] done in

11 As discussed above, however, the extent to which Plaintiffs are at

fault for their own predicament as a result of taking a calculated risk may

be an appropriate consideration in this case under the factor that considers

the nature of the change in the law.
HENSON V. FIDELITY NAT’L FINANCIAL 33

light of all the facts”). For example, the district court could

have taken account of the fact that, when the Ninth Circuit

denied the motions to dismiss Plaintiffs’ appeals and instead

remanded to the district court for appropriate relief in the first

instance, it is unlikely that the Ninth Circuit intended for the

district court to deny all relief and also refuse to re-enter final

judgment, thereby denying Henson and Turner any

opportunity to have their previously remanded appeals heard

on the merits.

Similarly, it would have been relevant for the district

court to consider how best to stay true to the Supreme Court’s

reasoning in Microsoft. Nothing in Microsoft suggests that a

litigant who agreed to a conditional dismissal to obtain

appellate review of a class certification ruling should have her

claims unconditionally dismissed, rather than being restored

to the status quo prior to entering the stipulation.12In fact, it

is somewhat paradoxical that, although the Court in Microsoft

ruled that a conditional voluntary dismissal like the one in

this case is not a final judgment under § 1291, see Microsoft,

137 S. Ct. at 1715, the district court effectively treated the

voluntary dismissal as a final, irrevocable judgment. This

leaves Plaintiffs in a catch twenty-two because, under

Microsoft, the dismissal was not a final judgment from which

12 The Supreme Court in Microsoft did not give any explicit indication

of how the case should proceed, if at all, following the Court’s decision

that there was no appellate jurisdiction to review the class certification

order. See Microsoft, 137 S. Ct. at 1715. That is, the Supreme Court did

not comment about whether the stipulated dismissal would remain in

force, and thus paradoxically become “final,” or whether the district court

should pick up where the case left off before the stipulated dismissal was

entered. However, the Supreme Court did remand the case “for further

proceedings consistent with this opinion,” suggesting that it did not view

the voluntary conditional dismissal as being final and irrevocable. See id.
34 HENSON V. FIDELITY NAT’L FINANCIAL

Turner could appeal the denial of class certification, but in the

district court, the voluntary dismissal was treated as having

finally ended the case. The interest in avoiding such a

contradiction with the Court’s reasoning in Microsoft weighs

in favor of granting relief under Rule 60(b)(6).

Finally, the negotiated nature of the voluntary dismissal

presents a circumstance unique to this case that is relevant to

the determination of whether Rule 60(b)(6) relief from the

judgment that was predicated on that stipulation is warranted. 

The district court did not address directly the explicit text of

the stipulation to determine whether the terms of the

agreement negotiated by the parties contemplated that the

dismissal would become final even if the appellate court

found that it lacked jurisdiction and therefore did not reach

the merits of Plaintiffs’ appeals. In particular, while the

stipulation does not set forth any specific agreement about

how the dismissal would be treated in the event of a

successful challenge to appellate jurisdiction, the stipulation

does provide that “plaintiffs will take nothing by way of their

complaint” if “the orders appealed are affirmed.” (Emphasis

added.) Because Plaintiffs appeals were remanded without a

decision on the merits, the district court’s orders were never

affirmed. Thus, it would have been relevant to the equities to

consider whether, under the strict text of the stipulation,

Plaintiffs agreed to dismiss their case with prejudice in the

current scenario, or whether giving effect to the terms of the

negotiated agreement supported granting relief.13

13 We do not wade into the fact-finding required to answer this

question, as it is not necessary to decide this case. We only point out the

relevance of this consideration to guide future courts faced with Rule

60(b)(6) motions.
HENSON V. FIDELITY NAT’L FINANCIAL 35

8. Weighing All Relevant Considerations

“Weighing all the relevant factors together and evaluating

the circumstances of this case,” the district court ultimately

concluded that the circumstances did not warrant relief under

Rule 60(b)(6). As detailed above, of the six Phelps factors,

the district court found that the reliance interest and comity

factors weighed against granting relief, the nature of the

change in the law weighed slightly against granting relief, the

diligence and delay factors were neutral, and the relative

closeness between the judgment and the change in the law

weighed in favor of relief.

However, as discussed above, the district court’s analysis

of the change-in-the-law, reliance interest, and comity

factors—those which it found weighed against relief—rested

upon an incorrect view of the law. The change-in-the-law

factor is neutral or slightly favors relief because Plaintiffs

relied on well-established circuit law and did not knowingly

risk permanent finality, even though they knew Fidelity

would challenge appellate jurisdiction and they could have

taken a different course of action. Properly interpreted and

applied, the factor considering the parties’ reliance interest in

the finality of the judgment weighs heavily in favor of Rule

60(b)(6) relief, because the change in the law occurred while

the appeal was pending, before the judgment became final

and before Fidelity developed any reliance interest in the

finality of the judgment. In addition, because the instant case

does not implicate principles of comity between state and

federal courts, the comity factor is inapplicable and does not,

as the district court found, weigh against granting relief.

Weighing all the Phelps factors, correctly analyzed, it is

clear that all the relevant circumstances in this case heavily
36 HENSON V. FIDELITY NAT’L FINANCIAL

tip the scale in favor of granting Rule 60(b)(6) relief. 

Although by the district court’s reasonable calculus the nature

in the change of the law factor weighed “slightly against”

granting relief, all the other factors are neutral or weigh in

favor of granting relief. Together, the circumstances of this

case are therefore sufficiently “extraordinary” that granting

relief from judgment here “is appropriate to accomplish

justice.” Phelps, 569 F.3d at 1135 (quoting Gonzalez,

545 U.S. at 542).

IV

Because the district court’s denial of Plaintiffs’ Rule

60(b)(6) motion rested upon an erroneous view of the law as

to several significant factors, the district court’s ruling was an

abuse of discretion. See Phelps, 569 F.3d at 1131. Moreover,

in light of all the circumstances of this case, we are left with

“a definite and firm conviction that the district court

committed a clear error of judgment in the conclusion it

reached upon a weighing of relevant factors.” See Valdivia,

599 F.3d at 988.

We therefore reverse the district court’s denial of

Plaintiffs’ Rule 60(b)(6) motion for relief fromjudgment, and

remand with directions to grant the Rule 60(b)(6) motion and

for further proceedings.

REVERSED and REMANDED with directions.