                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 25 2016
                   UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


RAM NEHARA,                                      No. 14-15860

              Plaintiff - Appellant,             D.C. No. 1:10-cv-00491-JLT

 v.
                                                 MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, an agency of the
State of California,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Jennifer L. Thurston, Magistrate Judge, Presiding

                       Argued and Submitted April 15, 2016
                            San Francisco, California

Before:       WALLACE, SCHROEDER and KOZINSKI, Circuit Judges.

      1. Nehara appealed from the order granting relief from judgment under

Federal Rule of Civil Procedure 60, but he failed to appeal from the evidentiary

order or from the final judgment. When “a party seeks to argue the merits of an

          *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                                 page 2
order that does not appear on the face of the notice of appeal,” we consider two

factors: “(1) whether the intent to appeal a specific judgment can be fairly inferred

and (2) whether the appellee was prejudiced by the mistake.” Le v. Astrue, 558

F.3d 1019, 1022–23 (9th Cir. 2009). In a Rule 28(j) letter filed after argument,

Appellee conceded that Nehara’s intent can be fairly inferred and that his mistake

caused no prejudice. We therefore “construe [Nehara’s] notice of appeal as

meeting the requirements” of the Federal Rules of Appellate Procedure despite its

“technical errors.” Id. at 1024–25.


      2. When deposed, Nehara denied that he held any jobs after 2009.

Following the jury verdict in favor of Nehara, the executive director of a healthcare

facility in Canada, Karen Carnes, filed a declaration representing that Nehara

worked for that facility between 2011 and 2013. Given this new information,

Appellee moved for relief from judgment under Rule 60(b). Nehara didn’t contest

the truth of the Carnes declaration, but he argued that relief from judgment was

improper because the new information went only to damages and not to liability.

      The magistrate judge didn’t abuse her discretion by granting the 60(b)

motion. Nehara’s lies regarding his past employment evince a scheme to defraud

the court and call the jury’s findings into serious doubt. It was entirely reasonable
                                                                                 page 3
for the magistrate judge to conclude that the outcome of the trial would likely have

been different if the new information had been available to the jury. Thus, relief

from judgment was proper under Rule 60(b). See Coastal Transfer Co. v. Toyota

Motor Sales, U.S.A., Inc., 833 F.2d 208, 211 (9th Cir. 1987).


        3. Nehara argues that the magistrate judge committed reversible error by

granting Appellee’s Rule 60(b) motion based on information submitted in response

to an improper subpoena. Appellee served a subpoena on the Canadian healthcare

facility well after the discovery cut-off date and without providing notice to

Nehara. Even assuming that the subpoena was procedurally improper, Appellee

has carried its burden of showing that the error was harmless. See Obrey v.

Johnson, 400 F.3d 691, 701 (9th Cir. 2005).

        There is no doubt that Carnes’s information would have reached the district

court even if no subpoena were ever issued. Carnes contacted the district court

with information about Nehara’s Canadian employment on June 5, 2013. Carnes

emailed counsel for Appellee on that same day. The subpoena was not issued until

June 12, 2013. Moreover, we have been cited no Ninth Circuit authority indicating

that suppression is an available remedy for an improper subpoena issued in a civil

case.
                                                                               page 4
      4. Nehara’s motion to strike portions of Appellee’s answering brief is

granted in part and denied in part. Footnote 2 is stricken because it refers without

citation to various disputed facts. See 9th Cir. R. 28–2.8. The final paragraph on

page 4 is permissible because it explains this case’s procedural posture.


      AFFIRMED.
