                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 31 2012

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




                            FOR THE NINTH CIRCUIT



ORVILLE MEAUX,                                   No. 11-15480

              Plaintiff - Appellant,             D.C. No. 4:04-cv-04444-CW

  v.
                                                 MEMORANDUM *
NORTHWEST AIRLINES, INC., a
Delaware corporation and ASSOCIATION
OF FLIGHT ATTENDANTS-
COMMUNICATIONS WORKERS OF
AMERICA,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Claudia A. Wilken, District Judge, Presiding

                       Argued and Submitted July 19, 2012
                            San Francisco, California

Before: TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiff-Appellant Orville Meaux appeals the district court’s denial of his

request for a continuance brought pursuant to former Rule 56(f)1 of the Federal

Rules of Civil Procedure and its denial of his motion to vacate the judgment

brought pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. Both of

these rulings are reviewed for an abuse of discretion. United States v. Kitsap

Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002) (Rule 56(f)); Cmty. Dental

Servs. v. Tani, 282 F.3d 1164, 1167 n.7 (9th Cir. 2002) (Rule 60(b)(6)). He also

appeals the district court’s grant of summary judgment to Defendant-Appellee

Northwest Airlines (“NWA”) on Meaux’s claim for discriminatory termination,2

which we review de novo. Russell Country Sportsmen v. U.S. Forest Serv., 668

F.3d 1037, 1041 (9th Cir. 2011). Because the procedural and factual history of this

case is familiar to the parties, we recount it only to the extent necessary to explain

our decision. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.




      1
         When the district court decided this case, Rule 56(f) governed
continuances on motions for summary judgment. Effective December 1, 2010, the
rules were amended so that former Rule 56(f) now appears as Rule 56(d). See
Roberts v. McAfee, Inc., 660 F.3d 1156, 1169 n.8 (9th Cir. 2011) (noting this
change).
      2
         At oral argument, Meaux’s attorney stated that he did not intend to bring
such a claim. Nonetheless, we construe Meaux’s opening brief as having
successfully appealed the district court’s discriminatory termination ruling.

                                           2
      “Under [Rule] 56(f), a trial court may order a continuance on a motion for

summary judgment if the party requesting a continuance submits affidavits

showing that, without Rule 56 assistance, it cannot present facts necessary to

justify its claims.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg.

Corp., 525 F.3d 822, 827 (9th Cir. 2008). Relief may be denied, however, where

the moving party has not acted diligently in pursing discovery before summary

judgment. Id. at 828. Because the record shows Meaux did not diligently conduct

discovery, the district court did not abuse its discretion in denying his Rule 56(f)

motion. Additionally, contrary to Meaux’s suggestion, the district court’s decision

not to explain why it denied his request is not dispositive; this Court may affirm on

any basis supported by the record. See, e.g., Dougherty v. City of Covina, 654 F.3d

892, 900 (9th Cir. 2011).

      Next, we affirm the district court’s grant of summary judgment to NWA on

Meaux’s discriminatory termination claim. NWA claims that it terminated Meaux

because Meaux wrote an inappropriate letter to the employer of a passenger who

complained to NWA about Meaux’s treatment of him during a trans-Pacific flight.

Meaux has not adduced sufficient evidence to create a disputed issue of material

fact as to pretext. See Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027,

1037 (9th Cir. 2005).


                                           3
      Finally, we affirm the district court’s denial of Meaux’s Rule 60(b)(6)

motion, which sought to vacate the judgment and reinstate Meaux’s claim against

NWA for discriminatory demotion. The district court did not clearly err by

declining to find that Meaux’s counsel acted with gross negligence, as counsel’s

representation did not amount to a virtual abandonment of Meaux’s interests. See

Tani, 282 F.3d at 1170–71. Even if counsel’s conduct was grossly negligent, the

district court did not abuse its discretion in concluding that a voluntary dismissal

cannot support the grant of a Rule 60(b)(6) motion. See Latshaw v. Trainer

Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 2006).

      AFFIRMED.




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