                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 15 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

MICHAEL S. REYNOLDS,                             No. 12-17457

              Plaintiff - Appellee,              D.C. No. 3:11-cv-03218-JSW

  v.
                                                 MEMORANDUM*
ALTON ANDERSON LOMAS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Northern District of California
                    Jeffrey S. White, District Judge, Presiding

                           Submitted January 13, 2014**
                             San Francisco, California

Before: GRABER and NGUYEN, Circuit Judges, and DEARIE,*** Senior District
Judge.

       Defendant Alton Anderson Lomas appeals the district court’s denial of his

motion for relief from a judgment under Federal Rule of Civil Procedure 60(b).

         *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
          The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
       ***
          The Honorable Raymond J. Dearie, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
Reviewing for abuse of discretion, Casey v. Albertson’s Inc., 362 F.3d 1254, 1257

(9th Cir. 2004), we affirm.

      1. The district court did not abuse its discretion when it denied Defendant’s

motion for relief from a judgment for mistake under Rule 60(b)(1). "[C]ounsel’s

failure to plead an affirmative defense . . . does not provide a basis for equitable

relief under Rule 60(b)(1)." Allmerica Fin. Life Ins. & Annuity Co. v. Llewellyn,

139 F.3d 664, 665-66 (9th Cir. 1998). Errors resulting from a lawyer’s ignorance,

carelessness, or intentional misconduct are not the sort of "mistakes" envisioned by

Rule 60(b)(1), but are "more appropriately addressed through malpractice claims."

Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1101 (9th Cir. 2006).

      2. The district court did not abuse its discretion when it denied Defendant’s

motion for relief from a judgment for extraordinary circumstances under Rule

60(b)(6). A lawyer’s failure to assert a defense "does not . . . constitute such gross

negligence or exceptional circumstances so as to justify the extraordinary relief

available pursuant to Rule 60(b)[(6)]." Allmerica, 139 F.3d at 666 (internal

quotation marks omitted). Furthermore, the failure of Defendant’s lawyer to meet

the filing deadline for the opposition to the motion to confirm the arbitration award

did not deprive Defendant of "the opportunity to present his case on the merits,"

Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1172 (9th Cir. 2002), because,


                                           2
although the court treated the motion to confirm as unopposed, it also considered

each of the six defenses that Defendant raised and concluded that, in the

alternative, it would confirm the arbitration award on the merits. Finally, taken

together, the two errors that Defendant alleges do not constitute "virtual[]

abandon[ment]" by Defendant’s original counsel or "comprehensively amount[] to

. . . practically no representation at all." Latshaw, 452 F.3d at 1103 (internal

quotation marks omitted).

      3. Because we hold that there was neither mistake as defined by Rule

60(b)(1), nor gross negligence sufficient to sustain a motion for relief under Rule

60(b)(6), we do not reach the merits of the two defenses that were omitted from

Defendant’s opposition to the motion to confirm. See Briones v. Riviera Hotel &

Casino, 116 F.3d 379, 380 (9th Cir. 1997) (per curiam) ("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." (internal quotation marks omitted)).

      AFFIRMED.




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