                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 25 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


HARVEY OTTOVICH, as Trustee for The              No. 13-17020
Harvey G. Ottovich Revocable Living
Trust dated May 12, 2006; et al.,                D.C. No. 3:10-cv-02842-WHA

              Plaintiffs - Appellants,
                                                 MEMORANDUM*
 v.

CHASE HOME FINANCE, LLC; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                    William H. Alsup, District Judge, Presiding

                          Submitted November 20, 2015**
                             San Francisco, California

Before: M. SMITH and N.R. SMITH, Circuit Judges, and SCHEINDLIN,*** Senior
District Judge.



        *
             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. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Shira Ann Scheindlin, Senior District Judge for the
U.S. District Court for the Southern District of New York, sitting by designation.
      Plaintiffs appeal the denial of a motion for relief from judgment under

Federal Rule of Civil Procedure 60(b). Such denials are reviewed for an abuse of

discretion. Cal. Dep’t of Soc. Servs. v. Leavitt, 523 F.3d 1025, 1031 (9th Cir.

2008). Because the district court in this case applied the correct rule of law and

rested its decision on amply supported findings of fact, we affirm.

      1. Plaintiffs first contend that the district court erroneously failed to reach

their argument under Rule 60(b)(6) that their previous attorney was grossly

negligent. “To justify relief under subsection (6), a party must show ‘extraordinary

circumstances’ suggesting that the party is faultless in the delay.” Pioneer Inv.

Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993) (quoting

Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988)). We have

held that “an attorney’s gross negligence resulting in dismissal with prejudice for

failure to prosecute constitutes an ‘extraordinary circumstance’ under Rule

60(b)(6).” Lal v. California, 610 F.3d 518, 524 (9th Cir. 2010).

      The district court addressed this argument, and found that Plaintiffs were far

from “faultless.” See Pioneer, 507 U.S. at 393; cf. Cmty. Dental Servs. v. Tani, 282

F.3d 1164, 1170 (9th Cir. 2002) (applying Rule 60(b)(6) to relieve an “innocent

party” from default judgment (emphasis added)). Plaintiffs failed to attend five

conferences and hearings at which their attendance was required. At least three of


                                           2
those failures cannot be attributed to their attorney’s negligence. For example, even

though their attorney informed them of a settlement conference on August 26,

2011, they failed to attend.1 Plaintiffs were therefore not without fault and the

district court did not abuse its discretion in denying their motion under Rule

60(b)(6).

      2. Plaintiffs also moved for relief under Rule 60(b)(1), which permits relief

when a party is partly at fault if its neglect is “excusable.” Pioneer, 507 U.S. at

393. Whether a party’s neglect is excusable depends on “a four-factor equitable

test.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010). The

district court correctly considered this test and determined: (1) that Defendants

were prejudiced by Plaintiffs’ repeated failure to appear at settlement conferences

and by the delay in the prosecution of the case; (2) that the delay, including the

nine months between the entry of judgment and the Rule 60 motion, was long



      1
        Plaintiffs argue that some of their failures to attend were due to Harvey
Ottovich’s ill health. The district court acknowledged that ill health might
constitute an “extraordinary circumstance,” but found that Plaintiffs’ evidence was
insufficient to show that ill health prevented them from complying with court
orders. For example, Harvey Ottovich’s “Patient Health Journal” mentions
“Depressive Disorder” on August 26, 2011, with no further explanation. With such
a barebones showing, the district court’s factual finding in this regard was not
clearly erroneous. Moreover, were we to review the factual record independently,
we might also be skeptical that Plaintiffs’ health problems repeatedly coincided
with the dates of missed conferences and hearings.
                                           3
enough to be significant; (3) that because at least three of Plaintiffs’ failures to

appear were not the fault of their attorney, Plaintiffs had no good reason for the

delay; and (4) that Plaintiffs’ and their attorney’s sworn declarations could not be

reconciled with the record, indicating Plaintiffs’ bad faith.

      The district court applied the correct rule of law and its factual

determinations in this regard are well supported by the record. It therefore did not

abuse its discretion in denying Plaintiffs’ motion under Rule 60(b)(1).

      Plaintiffs’ attorney may have been negligent, even grossly so. But Plaintiffs’

own repeated failure to obey reasonable court orders was sufficient to warrant the

dismissal of their case and to deny their motion for relief. The district court’s

decision is therefore

AFFIRMED.




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