NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BANK OF AMERICA, N.A.; FEDERAL 

NATIONAL MORTGAGE 

ASSOCIATION, 

Plaintiffs-Appellees, 

 v. 

LOS PRADOS COMMUNITY 

ASSOCIATION; NEVADA 

ASSOCIATION SERVICES, INC., 

Defendants, 

and 

WILLISTON INVESTMENT GROUP, 

LLC, 

Defendant-Appellant.

No. 20-16022 

D.C. No. 

2:16-cv-03008-APG-EJY 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Andrew P. Gordon, District Judge, Presiding

Submitted December 6, 2021**

San Francisco, California

* 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).

FILED

DEC 16 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Before: WARDLAW, BRESS, and BUMATAY, Circuit Judges.

Bank of America, N.A. (BANA) and Federal National Mortgage Association 

(FNMA) filed suit against Williston Investment Group, LLC (Williston) for quiet 

title, declaratory relief, injunctive relief, and damages. BANA and FNMA moved 

for partial summary judgment on their quiet title and declaratory relief claims, and 

after Williston failed to timely oppose their motion, the district court granted

partial summary judgment in favor of BANA and FNMA. Nearly three months 

after Williston’s opposition was due and over six weeks after the district court 

granted summary judgment, Williston filed a Rule 60(b)(1) motion for relief from 

judgment due to “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. 

Civ. P. 60(b)(1). The district court denied Williston’s motion, and Williston timely 

appealed this denial. Reviewing for abuse of discretion, see Mackey v. Hoffman, 

682 F.3d 1247, 1248 (9th Cir. 2012), we affirm.

1. The district court did not abuse its discretion in finding that Williston 

failed to demonstrate excusable neglect or inadvertence under Rule 60(b)(1). To 

determine whether a party’s failure to meet a deadline constitutes excusable 

neglect or inadvertence under Rule 60(b)(1), “courts must apply a four-factor 

equitable test, examining: (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.” Ahanchian v. Xenon 
3 

Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010); see also Harvest v. Castro, 

531 F.3d 737, 746 (9th Cir. 2008). 

We may affirm on any ground fairly supported by the record.1 Applying the 

four-factor equitable test here, the record supports the district court’s denial of 

Rule 60(b)(1) relief. See Ahanchian, 624 F.3d at 1261–62. First, as to the 

prejudice factor, although granting the Rule 60(b)(1) motion would have deprived 

BANA and FNMA of a “quick victory” at summary judgment, a mere delay

constitutes at most a “minimal” prejudice; thus, this factor weighs slightly in favor 

of Williston. See Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224–25 (9th Cir. 

2000). 

Second, Williston’s lengthy delay substantially impacted the proceedings. 

To this day, Williston has failed to file an opposition to BANA and FNMA’s 

motion for summary judgment, and it did not file its Rule 60(b)(1) motion until 

nearly three months after the deadline for its summary judgment response, over six 

weeks after the district court granted plaintiffs’ summary judgment motion, and 

two weeks after the deadline to respond to plaintiffs’ motion for entry of judgment. 

1 The district court based its decision on Williston’s lack of a meritorious 

defense, rather than applying the Pioneer/Briones factors discussed in Ahanchian. 

See Ahanchian, 624 F.3d at 1261. Although the district court did not apply the 

four-factor equitable test to Williston’s motion, we may apply this test on appeal 

and affirm if the record reasonably supports the district court’s conclusion. See 

M.D., by and through Doe v. Newport-Mesa Unified Sch. Dist., 840 F.3d 640, 643 

(9th Cir. 2016). 
4 

Cf. Harvest, 531 F.3d at 747 (deeming a 64-day delay substantial). This has 

caused a months-long delay in the resolution of this case, restricting plaintiffs’ 

ability to collect profits from their investment. 

Third, Williston’s asserted excuses for the delay contradict the record. On 

the one hand, Williston blames its delay on a calendaring mistake, but it filed a 

joint interim status report on February 17, 2020, in which it acknowledged the

plaintiffs’ then-pending summary judgment motion—an event that should have 

“prompted [Williston] to recalculate the due date.” See Washington v. Ryan, 833 

F.3d 1087, 1099 (9th Cir. 2016). On the other hand, Williston claims that it was 

taken off guard by the motion because it was filed after a lengthy stay in the case. 

However, the stay was lifted on September 11, 2019, and the summary judgment 

motion was filed over three months later on December 24, 2019, allowing 

Williston ample time to resume monitoring the case’s status and deadlines. 

Finally, we must at least question whether Williston made this motion in 

good faith, given that it claims it was ignorant of the summary judgment motion 

even though it filed a joint interim status report acknowledging the pending 

motion. Therefore, given that the first factor weighs only slightly in favor of 

Williston and the latter three factors weigh heavily in favor of the plaintiffs, the 

district court did not abuse its discretion in denying Rule 60(b)(1) relief.
5 

2. Williston has also failed to allege a mistake or surprise that warrants 

Rule 60(b)(1) relief. As stated above, Williston was aware of the motion for 

summary judgment as early as February 17, 2020. Thus, Williston’s choices to not

file a response to the summary judgment motion, ignore the court’s order granting 

the summary judgment motion, and wait for months to address the judgment by 

filing a Rule 60(b)(1) motion were “deliberate actions,” rather than mistakes 

justifying relief under Rule 60(b)(1). See Latshaw v. Trainer Wortham & Co., Inc., 

452 F.3d 1097, 1101 (9th Cir. 2006). Nor is there any reason to believe that the 

partial summary judgment motion constituted a surprise under Rule 60(b)(1), given 

Williston’s awareness of the motion as of February 17, 2020.

AFFIRMED.