                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 16 2020
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MELISSA STRAFFORD; CAROL                         No. 18-56064
JACQUEZ; DAVID MATTHEWS, JR.,
on behlaf of themselves and all other            D.C. No.
persons similarly situated,                      2:12-cv-09366-SVW-MAN

              Plaintiffs-Appellants,
                                                 MEMORANDUM*
 v.

ELI LILLY AND COMPANY, an Indiana
corporation

              Defendant-Appellee.


                    Appeal from the United States District Court
                        for Central California, Los Angeles
                    Stephen V. Wilson, District Judge, Presiding

                      Argued and Submitted January 6, 2020,
                              Pasadena, California

Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,** District

Judge.


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **     The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
      This appeal arises from a putative class action lawsuit against defendant Eli

Lilly and Company (“Lilly”) for alleged harms related to its marketing and labeling

of an antidepressant drug. After receiving a series of adverse rulings at the district

court level, plaintiffs voluntarily dismissed their claims to take advantage of then-

existing Ninth Circuit law allowing plaintiffs to appeal lower court rulings by

voluntarily dismissing their claims with prejudice. However, after an intervening

Supreme Court decision, Baker v. Microsoft Corp., 137 S. Ct. 1702 (2017),

invalidated this voluntary dismissal tactic and deprived the Ninth Circuit of

jurisdiction over their appeal, plaintiffs then sought to reopen their case by filing in

the district court a motion under Fed. R. Civ. P. 60(b)(6). Plaintiffs now appeal the

district court’s denial of that motion, which we review under an abuse of discretion

standard. Buck v. Davis, 137 S. Ct. 759, 777 (2017).

      In order to obtain relief under Rule 60(b)(6) plaintiffs must demonstrate the

existence of “‘extraordinary circumstances’ justifying the reopening of a final

judgment.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). This court’s recent

decision in Henson v. Fidelity National Financial, Inc., 943 F.3d 434 (9th Cir.

2019), demonstrates that plaintiffs have failed to make such a showing here. In

Henson, although this court held that the change in law represented by Baker

constituted an extraordinary circumstance justifying Rule 60(b)(6) relief in that


                                            2
case, it also emphasized that Rule 60(b)(6) analysis requires a “case-by-case

inquiry . . . captur[ing] all of the relevant circumstances.” Id. at 445-46.1 Material

differences between the facts of Henson and the present case demonstrate that

similar relief is not warranted here.

      Unlike the voluntary dismissal in Henson that was stipulated to by both

parties, the voluntary dismissal in this case was vehemently contested by the

defendant. This demonstrates that plaintiffs “knowingly risked permanent finality,”

because Lilly indicated “its position would be that the case was entirely over if

there was no appellate jurisdiction.” Id. at 448. Indeed, the plaintiffs themselves

acknowledged that a lack of jurisdiction would end their case in a district court

brief. Moreover, Lilly’s opposition, when coupled with the filing of the Baker

certiorari petition prior to the granting of the voluntary dismissal, makes clear that

plaintiffs “should have known that the law might change in an unfavorable way.”

Id. at 447. In short, the record reveals that plaintiffs’ choice to move for a

voluntary dismissal, unlike the plaintiffs’ actions in Henson, was the kind of “free,

calculated, deliberate choice[] . . . not to be relieved from” through a Rule 60(b)(6)


       1
          Furthermore, Henson, by reiterating that this court’s application of six
factors in Phelps v. Alameida, 569 F.3d 1120 (9th Cir. 2009), “was not meant to
‘impose a rigid or exhaustive checklist’” for evaluating Rule 60(b) claims based on
a change in law, precludes plaintiffs’ argument that the district court erred by
failing to explicitly apply the Phelps factors. Henson, 943 F.3d at 445.
                                            3
motion. Ackermann v. United States, 340 U.S. 193, 198 (1950). For these, and

other reasons, the district court’s denial of Rule 60(b)(6) relief was not an abuse of

discretion.

      Plaintiffs’ alternative argument that the district court abused its discretion by

denying Rule 60(b) relief based on Davidson v. Kimberly-Clark Corp., 889 F.3d

956, 963 (9th Cir. 2018), is no more successful. Plaintiffs argue that Davidson

constitutes a change in law justifying reopening the district court’s dismissal of its

injunctive and declaratory relief claims because Davidson clarified that “a

previously deceived consumer may have standing to seek an injunction against

false advertising or labeling, even though the consumer now knows or suspects that

the advertising was false at the time of the original purchase.” Id. at 969. It is not at

all clear, however, whether such a holding actually undermines the district court’s

conclusion in the instant case that plaintiffs lacked standing to seek injunctive and

declaratory relief. This court has held that doubt about whether a change in law

would impact the original opinion weighs “heavily” against Rule 60(b) relief,

rendering the district court’s opinion reasonable. Jones v. Ryan, 733 F.3d 825, 840

(9th Cir. 2013); see also Lopez v. Ryan, 678 F.3d 1131, 1137 (9th Cir. 2012).




                                            4
      Finally, this Ccurt lacks jurisdiction to conduct the review of certain of the

district court’s decisions that preceded the voluntary dismissal that the plaintiffs

now seek to substantively attack. The Supreme Court has held that “an appeal from

denial of Rule 60(b) relief does not bring up the underlying judgment for review.”

Browder v. Dir., Dep’t of Corr. of Illinois, 434 U.S. 257, 263 n.7 (1978). The

Ninth Circuit has recognized this principle in multiple cases. See, e.g., Molloy v.

Wilson, 878 F.2d 313, 315 (9th Cir. 1989); Harman v. Harper, 7 F.3d 1455, 1458

(9th Cir. 1993). Accordingly, we do not review the merits of the district court’s

dismissal of plaintiffs’ claim for injunctive and declaratory relief, or its failure to

grant their request to amend their complaint.

      AFFIRMED.




                                            5
