                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 14 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



WEST AMERICAN INSURANCE                          No. 11-35278
COMPANY, an Ohio corporation,
                                                 D.C. No. 6:07-cv-01447-AA
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

JUSTIN L. HERNANDEZ and DANIELA
A. HERNANDEZ,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                             Submitted May 10, 2012 **
                                 Portland, Oregon

Before: KOZINSKI, Chief Judge, TALLMAN and IKUTA, Circuit Judges.




        *
             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 district court did not abuse its discretion in denying West American

Insurance Company’s motions under Rules 60(b), 62, and 67 of the Federal Rules

of Civil Procedure. West American’s motion to resolve a dispute regarding its

entitlement to the $170,000 judgment under the mortgage clause sought relief that

was unavailable under Rule 60(b)(6) because it rested on a claim that was not

litigated as part of the underlying judgment. See Delay v. Gordon, 475 F.3d 1039,

1044–46 (9th Cir. 2007); see also United States v. $119,980, 680 F.2d 106, 107–08

(11th Cir. 1982). West American did not appeal the district court’s prior denials of

its motion to adjudicate that dispute, and Rule 60(b) is not available for

adjudication of claims not adjudicated in the underlying order or judgment. See

Delay, 475 F.3d at 1046–47. Nor was relief available under Rule 60(b)(5): The

judgment had not “been satisfied, released or discharged,” and circumstances had

not changed since the judgment was entered such that “applying it prospectively

[was] no longer equitable.” Fed. R. Civ. P. 60(b)(5).

      West American’s motions under Rules 62 and 67 became moot when the

district court decided its Rule 60(b) motion.

      AFFIRMED.




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