                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAR 23 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

PHILIP BOBBITT, individually and on             No.    18-17250
behalf of all others similarly situated,
                                                D.C. No. 4:09-cv-00629-FRZ
                Plaintiff-Appellant,

LANCE LABER,                                    MEMORANDUM*

      Intervenor-Plaintiff-
      Appellant,

and

JOHN J. SAMPSON; et al.,

                Plaintiffs,

 v.

MILBERG LLP; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Arizona
                    Frank R. Zapata, District Judge, Presiding

                       Argued and Submitted March 4, 2020
                                Phoenix, Arizona

Before: CLIFTON, OWENS, and BENNETT, Circuit Judges.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Philip Bobbitt appeals the district court’s order denying his Federal Rule of

Civil Procedure (“Rule”) 60(b)(6) motion based on a change in the law governing

the appealability of class certification denials. We have jurisdiction under 28

U.S.C. § 1291 to review the Rule 60(b) denial. See United States v. Sierra Pac.

Indus., Inc., 862 F.3d 1157, 1166 (9th Cir. 2017). We reverse the district court’s

denial and remand with directions to grant the Rule 60(b)(6) motion and for further

proceedings.

      We review “the denial of a motion for relief from judgment under Rule

60(b) for an abuse of discretion.” Henson v. Fidelity Nat’l Fin., Inc., 943 F.3d 434,

443 (9th Cir. 2019). While this case was pending on appeal, we decided Henson.

In Henson, we reiterated that in deciding whether to grant a Rule 60(b) motion

based on a change in the law, a court must “intensively balance numerous factors.”

Id. at 444 (quoting Phelps v. Alameida, 569 F.3d 1120, 1133 (9th Cir. 2009)). We

also clarified the factors a court should consider in deciding whether to grant Rule

60(b) relief under analogous circumstances. Id. at 446–55. Here, the district court

abused its discretion because it failed to conduct the required intensive balancing

based on the facts. We note, however, that the district court did not have the

benefit of Henson when it denied the motion. Because the facts relevant to the

merits of the Rule 60(b) motion are in the record, we exercise our discretion and

decide the merits of the motion. See Phelps, 569 F.3d at 1134–35.


                                          2
      The Henson factors weigh in favor of granting Rule 60(b) relief. There was

a change in the law because before Microsoft Corp. v. Baker, 137 S. Ct. 1702

(2017), Ninth Circuit case law established that the court could review interlocutory

orders after a plaintiff voluntarily dismissed his claims with prejudice. See

Omstead v. Dell, Inc., 594 F.3d 1081, 1085 (9th Cir. 2010); see also Henson, 943

F.3d at 447 (citing Omstead to support its statement that “Plaintiffs reasonably

relied on well-established Ninth Circuit law”). Though Bobbitt knew that there

was a circuit split on the issue, he reasonably relied on Ninth Circuit precedent,

and there is no indication that he should have known that the law would change.

We find that the circumstances relevant to the change-in-the-law factor are much

like those in Henson, and therefore like in Henson, we find that this factor is

neutral or slightly favors granting Rule 60(b) relief.

      We next consider Bobbitt’s diligence in seeking to avoid or mitigate the risk

of an unfavorable change in the law. Other than petitioning this court to review the

class certification denial under Rule 23(f) before voluntarily dismissing his claims,

Bobbitt did nothing else to mitigate the risk that the case would be over if Lance

Laber’s appeal were dismissed for lack of jurisdiction. Thus, this factor weighs

against granting relief.

      As for Milberg LLP’s (“Milberg”) reliance interest in the finality of the case,

the record does not show, nor does Milberg show, that it changed its legal position


                                           3
in reliance on the district court’s 2013 judgment. Indeed, after the district court’s

2013 judgment, we held in the now-vacated opinion Bobbitt v. Milberg LLP, 801

F.3d 1066 (9th Cir. 2015) (“Milberg I”), that the district court had erroneously

denied class certification, and we remanded “for further proceedings.” 801 F.3d at

1072. And because Milberg sought certiorari challenging Milberg I, the case

remained pending until we issued the mandate dismissing Laber’s appeal. On the

same day we issued the mandate, Bobbitt asked the district court to reinstate his

claims. Thus, Milberg could not have reasonably believed that the case was over

after the 2013 judgment. In Henson, we found that this factor weighed heavily in

favor of granting relief because the defendant showed no reliance interest in the

finality of the judgment. 943 F.3d at 451. The same is true here, and we therefore

find that this factor heavily favors granting relief.

      The delay factor “examines the delay between the finality of the judgment

and the motion for Rule 60(b)(6) relief.” Id. at 451–52 (internal quotation marks

omitted) (quoting Phelps, 569 F.3d at 1138). In Henson, we clarified that the delay

is measured from the date when the appeal from the dismissal became final. Id. at

452. Laber’s appeal was finally decided when this court issued the mandate on

October 11, 2018. That same day, Bobbitt sought relief by moving to reinstate his

individual claims in the district court. The district court denied the motion four

days later, and Bobbitt moved for Rule 60(b) relief 24 days after that denial.


                                            4
Because the delay was relatively short, we find that this factor favors granting Rule

60(b) relief.

      We next examine “the closeness of the relationship between the decision

resulting in the original judgment and the subsequent decision that represents a

change in the law.” Id. (quoting Jones v. Ryan, 733 F.3d 825, 840 (9th Cir. 2013)).

In Henson, we found that this factor favored relief because there was a close

connection as “the voluntary dismissal was explicitly predicated on the law that

Microsoft changed.” Id. Although Bobbitt stated in his motion for voluntary

dismissal that he wanted to dismiss his claims because it was “not economically

feasible” for him to litigate his individual claims, he also explained that “[i]f the

Court grants a dismissal, a member of the putative class is prepared to seek

intervention for the limited purpose of appealing the class-certification denial.”

The connection here may not be as close as the connection in Henson because

Bobbitt’s decision to voluntarily dismiss his claims was not solely predicated on

the law that Microsoft changed. However, Bobbitt’s decision was predicated, in

part, on the law that Microsoft changed, and we thus find that this factor slightly

favors Rule 60(b) relief.

      Of the two additional factors identified in Henson, we find that one applies

here—“the importance of heeding the intent of the rulings of federal appellate




                                           5
courts.”1 Id. at 453. In analyzing this factor, the Henson court noted that treating

the voluntary dismissal as a final, irrevocable judgment would put plaintiffs in a

“catch twenty-two because, under Microsoft, the dismissal was not a final

judgment from which [plaintiffs] could appeal the denial of class certification, but

in the district court, the voluntary dismissal was treated as having finally ended the

case.” Id. at 454. The court reasoned that granting Rule 60(b) relief would avoid

creating this “contradiction,” and thus this was another consideration that weighed

in favor of granting relief. Id. The same is true here, and thus we find this

reasoning weighs in favor of granting relief.

      Finally, we believe it is also appropriate to consider the fact that Bobbitt

voluntarily dismissed his claims regardless of the outcome of Laber’s appeal. This

fact weighs against granting relief because Bobbitt had no expectation that he

would be able to revive his individual claims. Though this consideration and the

diligence factor weigh against granting relief, all other factors weigh in favor of

granting relief (except for the change-in-the-law factor which is neutral or slightly

weighs in favor of granting relief). Thus, on balance, we hold that the relevant




      1
       The second additional factor in Henson dealt with the parties’ stipulation.
943 F.3d at 454. We do not consider this factor because Bobbitt and Milberg did
not have a stipulation.

                                          6
considerations favor granting Bobbitt’s Rule 60(b) motion.2 The district court is

directed to grant Bobbitt Rule 60(b) relief.

      The parties shall bear their own costs on appeal.

      REVERSED and REMANDED.




      2
         Bobbitt’s request to proceed on his individual claims because his voluntary
dismissal was ineffective under Microsoft, 137 S. Ct. 1702, is moot given our
decision to direct the district court to grant his Rule 60(b) motion seeking relief
from his voluntary dismissal. The district court’s 2013 and 2018 judgments on
Bobbitt’s individual claims cannot stand after Bobbitt is granted relief because
those judgments were based on Bobbitt’s voluntary dismissal. For that reason, we
do not address Bobbitt’s argument that we have jurisdiction to review the class
certification denial based on the district court’s 2018 judgment. On remand,
Bobbitt may seek reconsideration of the class certification denial, and the district
court is not precluded from revisiting the issue by the law of the case or any other
similar doctrine. Laber can also decide whether he wants to pursue his pending
motion to intervene, and if he chooses to, the district court is similarly not barred
from considering any such motion or the merits. We express no view on the merits
of these issues.

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