NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH DONG,

Plaintiff

- Appellant,

v.

BEN CARSON, Secretary, United States Department of Housing and Urban Development, a federal agency; et al.,

Defendants

- Appellees. No. 17

- 55603

D.C. No.

2:15

- cv

- 03539

- GHK

- AJW

MEMORANDUM *

Appeal from the United States District Court

for the Central District of California Virginia A. Phillips, District Judge, Presiding

Submitted October 12, 2018 **
Pasadena, California

Before: SCHROEDER and NGUYEN, Circuit Judges, and SIMON, *** District Judge.

Joseph Dong appeals the distric t court’s denial of relief under Federal Rule

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. 

# FILED

AUG 22 2019

MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2

of Civil Procedure 60(b)(1) and (b)(6). We have jurisdiction under 28 U.S.C.

§ 1291 and affirm.

First, Rule 60(b)(1) allows courts to “relieve a party or a party ’ s legal

representative from a final judgment o n the basis of mistake, inadvertence,

surprise, or excusable neglect.” Bateman v. U.S. Postal Serv

. , 231 F.3d 1220 , 1223

( 9th Cir. 2000)

. When determining whether to grant relief for late filings or

failures to appear under Rule 60(b)(1) for excusable ne glect , we apply the test set

forth in Pioneer and Briones

. See Pioneer Investment Services Co. v. Brunswick

Assocs. Ltd. P ’

ship , 507 U.S. 380, 394 (1993); Briones v. Riviera Hotel & Casino

,

116 F.3d 379, 381

– 82 (9th Cir. 1997). We evaluate four factors: “(1) the danger of

prejudice to the opposing party; (2) the length of the delay and its potential impact

on the proceedings; (3) the reason for the delay; and (4) whether the movant acted

in good faith.” Bateman , 231 F.3d 1223

– 24 (citing Pioneer , 507 U.S. at 395).

Ignorance and carelessness do not quality for Rule 60(b)(1) relief. See Engleson v.

Burlington N

. R. R. Co. , 972 F.2d 1038 , 1043 (1992)

.

Here, the district court properly applied the four Pioneer

- Briones factors

when Dong’s counsel failed to oppose a motion to dismiss

. The district court

concluded that the first factor weighed slightly a ga inst relief because six years ha d

passed since the alleged discriminatory events. As to the second factor, t he one

year dela y before Dong filed the Rule 60 motion weighed heavily against relief.3

The district court also thoroughly discussed the third factor , concluding that the

delay in filing the Rule 60 motion and Dong’s counsel’s ability to do other work

during that time per iod weighed against relief

. As to the final factor, Dong

appeared to act in good faith which weighed slightly in his favor, but not enough to

overcome the other factors.

Rule 60(b)(6) is a catch

- all rule sparingly allowing for relief from a final

judgmen t in “ extraordinary circumstances ” to prevent “ manifest injustice

. ” See

Community Dental Servs

. v. Tani , 282 F.3d 1164 , 1171

– 72 ( 9th Cir. 2002) ; United

States v. Alpine Land & Reservoir Co. , 984 F.2d 1047 , 1049 (1993) . Here, Dong

has failed to show extraordinary circumstances. Therefore, t he district court did

not abuse its discretion in denying the Rule 60 motion. 1

AFFIRMED.

1 We do not reach the merits of the underlying judgment. See Floyd v. Laws , 929 F.2d 1390, 1400 ( 9th Cir. 1991) (“An appeal from a denial of a Rule 60(b) motion brings up only the denial of the motion for review, not the merits of the underlying judgment”).