LAL v. California

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SHELLY LAL, individually and in 
her representative capacity on
behalf of the Estate of Kamal L.
Lal, decedent, and in her
representative capacity as guardian
ad litem for Sagar Lal; ESTATE OF No. 08-15645
KAMAL L. LAL; SAGAR LAL, a
minor,  D.C. No.
06-CV-05158-PJH
Plaintiffs-Appellants,
OPINION
v.
STATE OF CALIFORNIA; CALIFORNIA
HIGHWAY PATROL; FRANK NEWMAN;
MATTHEW OTTERBY,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted
July 13, 2009—San Francisco, California

Filed June 25, 2010

Before: Cynthia Holcomb Hall, William A. Fletcher and
Richard A. Paez, Circuit Judges.

Opinion by Judge William A. Fletcher;
Dissent by Judge Hall

9303
9306 LAL v. CALIFORNIA

COUNSEL

Sydney E. Fairbairn, Novato, California, Charles Stephen
Ralston, East Chatham, New York, for the appellants.

Thomas A. Blake, John P. Devine, OFFICE OF THE CALI-
FORNIA ATTORNEY GENERAL, San Francisco, Califor-
nia, for the appellees.

OPINION

W. FLETCHER, Circuit Judge:

Shelly Lal brought suit against the California Highway
Patrol (“CHP”) and officers Frank Newman and Matthew
Otterby (collectively, “Defendants”) for the shooting death of
her husband. The district court dismissed her case with preju-
dice under Federal Rule of Civil Procedure 41(b) for failure
to prosecute when her attorney failed to meet deadlines and
attend hearings. When Lal later learned of her attorney’s
behavior and the dismissal of her suit, she hired a new attor-
ney and filed a motion for relief from judgment pursuant to
Federal Rule of Civil Procedure 60(b)(6). The district court
denied the motion.

We reverse. We hold, pursuant to Community Dental Ser-
vices v. Tani, 282 F.3d 1164 (9th Cir. 2002), that an attorney’s
gross negligence constitutes an extraordinary circumstance
 LAL v. CALIFORNIA 9307
warranting relief from a judgment dismissing the case for fail-
ure to prosecute under Rule 41(b).

I. Background

Lal’s husband Kamal Lal was shot and killed by CHP offi-
cers Newman and Otterby on March 6, 2005. On March 8,
2005, Lal retained Charles Spahr to represent her and her
minor son. In December 2005, Spahr and his co-counsel Mark
Webb filed suit against Defendants in state court on behalf of
Lal, her son, and her husband’s estate. On August 23, 2006,
Defendants removed to federal court.

On November 15, 2006, the district court allowed Webb to
withdraw. Spahr remained as Lal’s attorney. On November
26, Defendants’ counsel sent Spahr their initial Rule 26 dis-
closures. Spahr made no initial disclosures. Two days later,
Defendants filed a case management statement. The initial
case management conference was scheduled for November
30. Defense counsel and Spahr appeared at the scheduled
time, but the court continued the conference to January 18,
2007. The court ordered counsel for both parties to confer
before January 18 and ordered Spahr to provide Rule 26 dis-
closures within two weeks. Spahr did neither.

According to her sworn statement provided to the district
court, Lal called Spahr in mid-December 2006 to check on the
status of her case. She recounts that Spahr told her that he had
participated in a conference call with defense counsel and the
district court judge, that the judge wanted the parties to settle
the case, and that the next meeting would take place in
approximately two to three months. He did not tell her about
the scheduled January 18 case management conference.

Neither Spahr nor Lal appeared at the January 18 manage-
ment conference. Lal states that she did not know about the
hearing and that she would have appeared, either with or
without Spahr, had she known about it. On January 19, the
9308 LAL v. CALIFORNIA
district court entered a written order directing Lal and Spahr
to show cause why sanctions should not be imposed “includ-
ing dismissal of the complaint for failure to prosecute and/or
monetary sanctions for her repeated refusal to comply with
the court’s orders.” The court set a hearing on the order to
show cause for February 1 and warned that “[i]f plaintiff fails
to appear her complaint will be dismissed.”

Neither Lal nor Spahr appeared on February 1. Lal states
that she did not know about this second hearing. At the hear-
ing, counsel for Defendants stated that they had received no
communications from Spahr and renewed a previous request
that the court dismiss the case. The next day, in a written
order, the district court dismissed for failure to prosecute pur-
suant to Federal Rule of Civil Procedure 41(b).

Lal states that she called Spahr in March to check on her
case. She states that Spahr told her that Defendants needed
more time for discovery. Lal left Spahr a voicemail on June
1. Spahr replied in a text message, telling Lal that he would
call her that evening. But Spahr did not call. Spahr left a
voicemail about a week later, telling Lal that he was in the
process of filing pre-trial motions and that Webb had tenta-
tively agreed to work on her case again.

Lal left another voicemail for Spahr in August, but he did
not respond. Lal then called Webb’s office and left a message
for Webb. Webb also did not respond. Lal left another voice-
mail for Spahr in September. He finally returned her call on
September 21. He told her he had scheduled depositions in
her case for late November. When Lal asked about additional
depositions, Spahr said it would be better to wait to discuss
her case until Webb returned the following week. Spahr then
scheduled a conference call for himself, Webb, and Lal for
September 25. Spahr did not call at the time scheduled for the
conference call. Lal called Spahr 30 minutes later and left a
voicemail. She then sent him an email the next day about their
 LAL v. CALIFORNIA 9309
failed conference call. She received no response to either her
voicemail or email.

Lal states that she called attorney Wynn Herron at about
this time to “get a second opinion.” Herron returned her call
on October 1, 2007. He told Lal that the district court had dis-
missed her case on February 2, 2007, because Spahr had
failed to appear for a hearing. Lal states that she was shocked
and told Herron she was never informed of this development.
Herron advised her to file a complaint with the California
State Bar. Lal asked Herron about the merits of her case, but
Herron told Lal that he did not handle such cases.

Lal states that she called Spahr later that same day. Spahr
told her that he had missed the district court hearing for a
good reason and that he had re-filed her case in state court.
Lal asked for copies of the papers he filed, along with the case
numbers. Lal then called Herron again and asked him to find
the state court case Spahr claimed he filed on her behalf. Her-
ron could find no pending cases filed on behalf of Lal or her
son.

Lal states that she called Spahr the next day, October 2, to
get copies of the documents he claimed to have filed. Spahr
told her he needed 24 to 48 hours to retrieve the documents,
that he had moved offices, and “if anything fell through the
cracks, that he would make it up to me.” Lal was distraught
and spoke to her priest, who called Spahr. Spahr left Lal a
message on her voicemail at work at 7:00 p.m. on October 3,
suggesting that they set up a meeting the next morning to dis-
cuss Spahr’s plans for Lal’s case. Lal states that she was not
at work on the morning of October 4, and did not receive the
message in time to meet with Spahr. It is unclear whether the
meeting would have actually taken place if Lal had received
the message in time.

Lal filed a complaint with the State Bar eight days later, on
October 12. Spahr called her that same day and told her he
9310 LAL v. CALIFORNIA
was filing a “pre-hearing motion” in her case. Lal again asked
for copies of all of the documents filed in her case. After not
receiving anything for another two weeks, Lal called Spahr
again. Spahr said he would deliver the papers to her house
that evening, but he never came.

Lal called the State Bar in November and spoke with Willis
Shalita, the investigator assigned to her complaint. Shalita
advised Lal to get another attorney. Lal attempted to retain
attorney Paula Canny that same day. Lal was told that Canny
was undergoing chemotherapy and might not be able to take
on her case, and that she would need to read everything before
making a decision. Lal states that a person in Canny’s office
told her “a couple of weeks later” that Canny had a conflict
of interest and could not represent her.

Lal then called several other attorneys, all of whom
declined to help her. On December 27, Lal contacted attorney
Sydney Fairbairn. Fairbairn advised Lal to demand that Spahr
turn over her case files and to hire a service to obtain copies
of her case files from federal and state court. Lal called Fair-
bairn back four days later to say that she had hired a service.
She then met with Fairbairn on January 5, 2008. Lal formally
retained Fairbairn on January 22.

On January 25, 2008, Fairbairn filed a motion for substitu-
tion of counsel and a motion for relief from judgment under
Federal Rule of Civil Procedure 60. The Rule 60 motion was
supported by sworn declarations from Fairbairn and Lal.

The district court held a hearing on the Rule 60 motion for
relief from the dismissal for failure to prosecute on March 5,
and denied the motion two days later. The court expressed
doubt about the applicability of our decision in Tani, 282 F.3d
1164, in which we held that an attorney’s gross negligence
was a ground for granting a motion for relief from a default
judgment. The court went on to hold that, even if Tani
 LAL v. CALIFORNIA 9311
applied, Lal had not diligently pursued relief under Rule
60(b)(6) and that her delay prejudiced Defendants.

Lal timely appealed.

II. Standard of Review

We review for abuse of discretion a district court’s dis-
missal of an action under Federal Rule of Civil Procedure
41(b) for failure to prosecute. Hearns v. San Bernardino
Police Dep’t, 530 F.3d 1124, 1129 (9th Cir. 2008). We also
review for abuse of discretion a district court’s decision to
deny a Rule 60(b) motion. Cal. Dep’t of Soc. Servs. v. Leavitt,
523 F.3d 1025, 1031 (9th Cir. 2008). We review de novo “any
questions of law underlying the district court’s decision” to
deny a Rule 60(b) motion. Jeff D. v. Kempthorne, 365 F.3d
844, 850-51 (9th Cir. 2004).

III. Discussion

Lal appeals both the district court’s order dismissing her
action for failure to prosecute and the order denying her
motion for relief from judgment. We address each in turn.

A. Dismissal for Failure to Prosecute

The district court dismissed Lal’s suit under Rule 41(b) on
February 2, 2007. Rule 41(b) states that “[u]nless the dis-
missal order states otherwise, a dismissal under this subdivi-
sion (b) . . . operates as an adjudication on the merits.” The
district court order dismissing Lal’s action did not state other-
wise and was therefore an adjudication on the merits. Because
the dismissal order ended Lal’s suit on the merits, it is a final
decision appealable under 28 U.S.C. § 1291.

[1] Federal Rule of Appellate Procedure 4(a)(1)(A) pro-
vides, “In a civil case . . . the notice of appeal . . . must be
filed with the district clerk within 30 days after the judgment
9312 LAL v. CALIFORNIA
or order appealed from is entered.” Lal filed her notice of
appeal on March 24, 2008, over one year after the district
court dismissed her action. Under the version of Federal Rule
of Appellate Procedure 4(a)(4)(A)(vi) then in effect, the 30-
day deadline for filing a notice of appeal started to run from
the time the court entered an order disposing of a Rule 60
motion, so long as the Rule 60 motion was filed “no later than
10 days after the judgment [was] entered.”1 However, Lal
filed her Rule 60 motion on January 25, 2008, long after the
court’s February 2, 2007 dismissal order. We therefore do not
have jurisdiction to review the district court’s dismissal of
Lal’s action for failure to prosecute.

B. Relief from Judgment

[2] Federal Rule of Civil Procedure 60(b) provides, in rele-
vant part:

On motion and just terms, the court may relieve a
party or its legal representative from a final judg-
ment, order, or proceeding for the following reasons:

...

(6) any other reason that justifies relief.

A motion under Rule 60(b)(6) “must be made within a reason-
able time.” Fed. R. Civ. P. 60(c)(1). We use Rule 60(b)(6)
“sparingly as an equitable remedy to prevent manifest injus-
tice.” United States v. Alpine Land & Reservoir Co., 984 F.2d
1047, 1049 (9th Cir. 1993). To receive relief under Rule
60(b)(6), a party must demonstrate “extraordinary circum-
stances which prevented or rendered him unable to prosecute
[his case].” Tani, 282 F.3d at 1168 (citing Martella v. Marine
1
Rule 4(a)(4)(A)(vi) was amended in 2009 to provide a 28-day limit
rather than a 10-day limit for filing the Rule 60 motion. At all times rele-
vant to this case, the 10-day limit applied.
 LAL v. CALIFORNIA 9313
Cooks & Stewards Union, 448 F.2d 729, 730 (9th Cir. 1971)
(per curiam)).

[3] An attorney’s actions are typically chargeable to his or
her client and do not ordinarily constitute extraordinary cir-
cumstances warranting relief from judgment under Rule
60(b)(6). See Link v. Wabash R.R. Co., 370 U.S. 626, 633-34
(1962); Ringgold Corp. v. Worrall, 880 F.2d 1138, 1141-42
(9th Cir. 1989). But there are exceptions to this general princi-
ple. In Community Dental Services v. Tani, 282 F.3d 1164
(9th Cir. 2002), we joined the Third, Sixth and Federal Cir-
cuits in holding that an attorney’s gross negligence constitutes
such an extraordinary circumstance. We followed the Third
Circuit in defining gross negligence as “neglect so gross that
it is inexcusable.” Id. at 1168 (quoting Boughner v. Sec’y of
Health, Educ. & Welfare, 572 F.2d 976, 978 (3d Cir. 1978)).

[4] The attorney in Tani “virtually abandoned his client by
failing to proceed with his client’s defense despite court
orders to do so” and deliberately deceived his client about
what he was doing (or not doing). Id. at 1170-71. The district
court issued a default judgment. When Tani learned of the
default judgment, he promptly hired a new attorney and filed
a motion for relief from the default judgment under Rule
60(b)(6). Id. at 1167. The district court denied the motion.

[5] We held that the behavior of Tani’s first attorney con-
stituted gross negligence and that the district court abused its
discretion in refusing to grant Tani relief under Rule 60(b)(6).
We wrote, “[C]onduct on the part of a client’s alleged repre-
sentative that results in the client’s receiving practically no
representation at all clearly constitutes gross negligence, and
vitiat[es] the agency relationship that underlies our general
policy of attributing to the client the acts of his attorney.” Id.
at 1171.

[6] We apply Tani to this case and hold that an attorney’s
gross negligence resulting in dismissal with prejudice for fail-
9314 LAL v. CALIFORNIA
ure to prosecute constitutes an “extraordinary circumstance”
under Rule 60(b)(6) warranting relief from judgment. Dis-
missal with prejudice under Rule 41(b) for failure to prose-
cute is the converse of a default judgment. In both instances,
the consequence of the attorney’s action (or inaction) is a loss
of the case on the merits. The only significant difference is
that the plaintiff rather than the defendant suffers the adverse
judgment.

Our holding is consistent with Latshaw v. Trainer Wortham
& Co., Inc., 452 F.3d 1097 (9th Cir. 2006). The plaintiff-
appellant in Latshaw requested Rule 60(b)(6) relief from a
judgment resulting from her acceptance of an offer of judg-
ment under Federal Rule of Civil Procedure 68. Id. at
1102-03. She stated that she accepted the offer based on her
attorney’s coercion and erroneous legal advice, and she
argued that his conduct constituted gross negligence meriting
Rule 60(b)(6) relief. Id. We distinguished default judgments,
which are disfavored, from Rule 68 judgments, which are “ac-
tively supported” by courts. Id. at 1103. We therefore
declined to extend Tani to allow relief from judgments
entered under Rule 68, holding that the plaintiff-appellant’s
attorney’s conduct, even if grossly negligent, did not consti-
tute grounds for Rule 60(b)(6) relief.

A dismissal for failure to prosecute under Rule 41(b) is
much more like a default judgment than a Rule 68 judgment.
We based our decision in Tani on “the well-established policy
considerations we have recognized as underlying default
judgments and Rule 60(b).” Tani, 282 F.3d at 1169. The same
policy considerations underlie dismissal for failure to prose-
cute. We have stated that dismissal under Rule 41(b) “is so
harsh a penalty it should be imposed as a sanction only in
extreme circumstances.” Dahl v. City of Huntington Beach,
84 F.3d 363, 366 (9th Cir. 1996). This is almost identical to
our stance on default judgments, which are “appropriate only
in extreme circumstances.” Falk v. Allen, 739 F.2d 461, 463
(9th Cir. 1984) (per curiam).
 LAL v. CALIFORNIA 9315
It is obvious that the conduct of Lal’s attorney constituted
gross negligence. The facts recounted in Lal’s sworn state-
ment are not disputed. The similarities between the attorney’s
conduct in Tani and Spahr’s conduct in this case are striking.
First, both attorneys “virtually abandoned [their] client[s] by
failing to proceed with [their] client[s’] [case] despite court
orders to do so.” Tani, 282 F.3d at 1170. The attorney in Tani
filed the answer late and never provided plaintiffs with a
copy. He “failed to contact [plaintiff] for preliminary settle-
ment discussions despite being ordered to do so, failed to
oppose [plaintiff’s] motion to strike the answer, and failed to
attend various hearings.” Id. at 1171. Spahr failed to make ini-
tial Rule 26 disclosures after being ordered to do so; failed to
meet, confer, and participate in the joint case management
conference after being ordered to do so; and failed to attend
hearings.

[7] Second, both the attorney in Tani and Spahr “deliber-
ately misle[d] [their clients] and depriv[ed] [them] of the
opportunity to take action to preserve [their] rights.” Id.
Tani’s attorney “explicitly represented to Tani that the case
was proceeding properly.” Id. Tani only learned of the default
judgment against him when the judgment was mailed to his
office. Id. at 1167. Similarly, Spahr continued to tell Lal that
her case was moving forward even after it had been dis-
missed. In mid-December 2006, Spahr told Lal that the next
meeting on her case would be in two to three months, even
though the case management conference was scheduled for
January 18, 2007. Although the district court had dismissed
Lal’s action for failure to prosecute on February 2, 2007,
Spahr told her in March that Defendants needed more time for
discovery. On September 21, 2007, Spahr lied to Lal, telling
her he had scheduled depositions in her case for November.
On October 1, Spahr told Lal that he had re-filed her suit in
state court. On October 12, Spahr told Lal he was filing a
“pre-hearing motion” in her case. Throughout October, Spahr
repeatedly assured Lal that he would give her copies of all of
the documents he falsely claimed to have filed in her case. In
9316 LAL v. CALIFORNIA
these circumstances, we hold that Spahr acted with gross neg-
ligence and that Lal has demonstrated “extraordinary circum-
stances” beyond her control that merit relief under Rule
60(b)(6).

After expressing doubt about whether Tani should be
applied to grant Rule 60(b)(6) relief from a dismissal for fail-
ure to prosecute under Rule 41(b), the district court went on
to deny relief even on the assumption that Tani applied. The
court relied on two grounds.

[8] First, the district court held that Lal had not pursued
Rule 60(b)(6) relief diligently. We disagree. Not quite four
months elapsed between when Lal learned on October 1, 2006
that her case had been dismissed and when she filed her
motion for relief. During all of October, Spahr told her that
he was working on her case. Two weeks after learning that
her case had been dismissed, Lal filed a complaint with the
State Bar. Lal called the State Bar in November and tracked
down the investigator assigned to her complaint. The investi-
gator advised her to get a new attorney. Lal contacted Paula
Canny’s office that same day. Canny took “a couple of
weeks” before deciding not to take the case. Lal then con-
tacted several other attorneys, none of whom agreed to take
her case.

On December 27, 2007, Lal contacted Sydney Fairbairn.
Fairbairn told Lal how to obtain copies of the documents filed
in her case. Lal obtained the documents and met with Fair-
bairn on January 5, 2008. Fairbairn then acted promptly to
assess Lal’s case. Fairbairn filed a substitution of attorney
motion and a Rule 60(b)(6) motion, accompanied by sworn
statements, on January 25.

Second, the district court held that Defendants would suffer
significant prejudice if Lal’s Rule 60(b)(6) motion were
granted. Here, too, we disagree. The court relied on a declara-
tion from Professor Robert Bjork, Chair of the Psychology
 LAL v. CALIFORNIA 9317
Department at the University of California, Los Angeles.
Bjork specializes in “directed forgetting,” which he describes
as the “forgetting process triggered by an explicit or implicit
instruction that some information presented or studied earlier
should now be forgotten.” Defendants’ counsel had sent
defendants Newman and Otterby letters dated March 22,
2007, informing them that Lal’s case had been dismissed on
the merits and that the dismissal was final because the time
for appealing the order had lapsed. Bjork stated that the dis-
missal of Lal’s case “served as an unambiguous cue to the
officers that they were free to move on with their lives—and
free to not keep remembering and replaying memories of a
highly traumatic episode that happened almost two years ear-
lier.” Bjork stated that “the officers’ testimony will be lacking
in the color and detail expected of police officers in such situ-
ations, meaning, among other things, that it may appear less
credible than it would have had the officers not been lead to
believe that the resolution in their favor was final.”

Newman and Otterby shot and killed Lal’s husband on
March 6, 2005. Lal’s case was dismissed almost two years
later, on February 2, 2007. On March 22, 2007, Defendants’
counsel informed Newman and Otterby that Lal’s case had
been dismissed. Ten months elapsed between the time they
were informed that the case had been dismissed and the time
Lal filed her Rule 60(b)(6) motion on January 25, 2005. Even
if it is true that Defendants’ memories significantly deterio-
rated during these ten months, and that this deterioration was
assisted by what Professor Bjork calls “directed forgetting,”
we do not agree with the district court that such a deteriora-
tion would constitute sufficient prejudice to warrant denying
Lal’s motion.

[9] Defendants’ initial disclosures, filed in the district court
in November 2006, make clear that there were eleven CHP
officers besides Newman and Otterby who were “witnesses
on scene at [the] time of the incident.” An undisclosed num-
ber of “witness officer interviews” were conducted by yet
9318 LAL v. CALIFORNIA
another CHP officer. The CHP conducted an investigation of
the shooting, and there are tape recorded statements of twelve
CHP officers taken in connection with that investigation.
Finally, there are written transcripts of contemporaneous
statements by both Newman and Otterby. Given this wealth
of evidence, despite whatever “directed forgetting” Newman
and Otterby might have done, Defendants cannot convinc-
ingly argue that the evidence in this case has been so compro-
mised as a result of any delay in bringing a Rule 60(b)(6)
motion that they have been substantially prejudiced.

Conclusion

[10] For the foregoing reasons, we hold that Lal’s Rule
60(b)(6) motion for relief from judgment should have been
granted. We reverse the judgment of the district court and
remand for further proceedings.

REVERSED and REMANDED.

HALL, Circuit Judge, dissenting:

I agree with the majority that we do not have jurisdiction
to entertain an appeal from the underlying dismissal for fail-
ure to prosecute. I must respectfully dissent, however, from
the balance of the majority opinion. I disagree with the major-
ity’s conclusion that the district court abused its discretion in
denying the Rule 60(b) motion. I do not believe that Cmty.
Dental Servs. v. Tani, 282 F.3d 1164 (9th Cir. 2002), applies
to a dismissal for failure to prosecute, and even if it were
applicable, the district court acted within its discretion in
denying Lal’s motion.

I.

The district court assumed arguendo that our decision in
Tani could apply to allow a party relief from judgment in
 LAL v. CALIFORNIA 9319
cases of gross attorney negligence in circumstances beyond
default judgments. The majority opinion addresses this issue
directly and approves this extension of Tani. I disagree.

We have never held that Tani applies outside the context of
relief from a default judgment. We have held, to the contrary,
that “[o]ur decision in Tani was explicitly premised upon the
default judgment context of the case.” Latshaw v. Trainer
Wortham & Co., 452 F.3d 1097, 1103 (9th Cir. 2006). The
majority circumvents this limitation by concluding that a dis-
missal for failure to prosecute is the “converse” of a default
judgment, and that the only difference between the two types
of dismissals is the party that suffers the adverse judgment.

There are important distinctions between dismissals for
failure to prosecute and default judgments. It is a plaintiff’s
burden to prosecute a case, and we have previously stated that
a litigant has “a duty to keep track of the progress of their
lawsuit,” even when represented by counsel. Ringgold Corp.
v. Worrall, 880 F.2d 1138, 1141-42 (9th Cir. 1989). A plain-
tiff chooses when and where to bring a case, and which claims
to bring, whereas a defendant subject to a default judgment
lacks such fundamental control over a lawsuit and may have
been deprived of the opportunity to respond to allegations
against him or her.

Accordingly, in Link v. Wabash R.R. Co. the Supreme
Court held that it was proper for a court to dismiss an action
under Rule 41(b) for failure to prosecute where the plaintiff
was not aware of, or was faultless in, the attorney’s negli-
gence:

There is certainly no merit to the contention that dis-
missal of the petitioner’s claim because of his coun-
sel’s unexcused conduct imposes an unjust penalty
on the client. Petitioner voluntarily chose this attor-
ney as his representative in the action, and he cannot
now avoid the consequences of the acts or omissions
9320 LAL v. CALIFORNIA
of this freely selected agency . . . And if an attor-
ney’s conduct falls substantially below what is rea-
sonable under the circumstances, the client’s remedy
is against the attorney in a suit for malpractice. But
keeping this suit alive merely because the plaintiff
should not be penalized for the omissions of his own
attorney would be visiting the sins of plaintiff’s law-
yer upon the defendant.

370 U.S. 626, 633-634 & n.10 (1962). Even though the plain-
tiff in Link may have lost the opportunity to recover from the
defendant for his personal injuries, the Supreme Court rea-
soned that the defendant should not be penalized for the mis-
conduct of plaintiff’s lawyer. The plaintiff’s proper avenue of
relief after a dismissal for failure to prosecute was to seek
damages from his attorney in a malpractice lawsuit.

Our decision in Tani spells out why a malpractice lawsuit
may be an ineffective remedy for a default judgment, and in
doing so demonstrates why a default judgment is more likely
to have irreparable consequences than a dismissal for failure
to prosecute. Tani was subject to a $2 million default judg-
ment enjoining him from continuing to use his business name.
Even if he were able to recover in a malpractice action some
day in the future, in the interim he might need to sacrifice sig-
nificant personal and business assets and drastically cut back
on his familial expenses in order to satisfy the judgment. 282
F.3d at 1171-72. The malpractice suit also would not restore
Tani’s ability to use his business name and the intangible
business benefits that ensue from continued use of that name.
Id. at 1172.

The dismissal of Lal’s lawsuit for failure to prosecute, like
the dismissal of the lawsuit in Link, does not raise similar
inequities. As the Supreme Court has indicated, Lal can be
compensated through a malpractice action against her attor-
ney, and she will not be saddled with a substantial money
judgment or injunction in the interim. A plaintiff who has suf-
 LAL v. CALIFORNIA 9321
fered bodily, emotional or economic injuries certainly may be
forced to bear the costs of those injuries until the resolution
of a malpractice suit, but the protracted nature of civil litiga-
tion likely would have forced plaintiff to bear these costs had
the initial lawsuit proceeded to a judgment on the merits. The
consequences to Lal of dismissal of her lawsuit for failure to
prosecute do not justify a departure from the usual lawyer-
client agency principles set forth in Link, and therefore her
lawyer’s misconduct does not constitute the “extraordinary
circumstances” required for relief under Rule 60(b)(6).

II.

Even if Tani were applicable in the context of dismissal for
failure to prosecute, I do not believe the district court abused
its discretion in its application of Tani.

A district court abuses its discretion when it applies the
incorrect legal standard or its “application of the correct legal
standard was (1) illogical, (2) implausible, or (3) without sup-
port in inferences that may be drawn from the facts in the
record.” United States v. Hinkson, 585 F.3d 1247, 1262 (9th
Cir. 2009) (en banc) (internal citations and quotation marks
omitted). We may not “simply substitute our view for that of
the district court,” and we must be “left with the definite and
firm conviction that a mistake has been committed.” Id. The
majority fails to afford sufficient deference to the judgment of
the district court.

The district court relied on two primary factors in denying
Lal’s motion: (1) Lal’s four month delay in pursuing the
motion after discovering the dismissal, and (2) prejudice to
defendants.

The majority finds that Lal acted diligently during the four
months between learning of the dismissal of her lawsuit and
filing the Rule 60(b) motion. It first credits Lal’s statement
that she continued to be “represented” and “misled” by Spahr
9322 LAL v. CALIFORNIA
throughout October. This conclusion, however, is at least
arguably belied by her filing a complaint with the State Bar
on October 12, 2007 and by calling another attorney on Octo-
ber 1, 2007 to confirm that Spahr was lying about refiling her
action in state court. The majority next emphasizes Lal’s
efforts to secure a lawyer in November, December and Janu-
ary, yet, as pointed out by the district court, Lal also stated in
her declaration that she would have appeared in court without
her attorney had she known about the hearing her attorney
missed. She filed a pro se complaint against her attorney with
the California bar less than two weeks after learning of the
dismissal, yet she made no contact with the district court in
the four months preceding her Rule 60(b) motion. Lal found
representation just two days after her husband’s death, and
represented to the court that she would have “gotten legal rep-
resentation elsewhere a long time ago” had she known about
Spahr’s problems. Even though the record might arguably
support the majority’s conclusion that Lal acted diligently, it
also supports the district court’s conclusion to the contrary.

The district court’s finding of prejudice to defendants is
also supported. It relied primarily on an expert opinion sub-
mitted by defendants regarding the effects of memory loss on
the officers’ testimony. Three years had passed since the
shooting of Lal’s husband and almost one year had passed
since the officers were “prompted” to let go of their memories
of the event through notification of the final order of dis-
missal. Nevertheless, the majority cites to the existence of
several percipient witnesses and contemporaneous interviews
and concludes that “Defendants cannot convincingly argue”
that they would be substantially prejudiced “even if it is true
that Defendants’ memories significantly deteriorated during
these ten months” between dismissal and the Rule 60(b)
motion. Defendants, however, bear no burden of establishing
prejudice. The burden is entirely upon the moving party to
demonstrate “extraordinary circumstances” beyond their con-
trol, and the court to evaluate the equities involved. The dis-
trict court found the expert opinion credible and persuasive,
 LAL v. CALIFORNIA 9323
and Lal did not object to the district court’s reliance on the
expert testimony at the hearing.

We have stated repeatedly that Rule 60(b)(6) motions
should be used sparingly, see, e.g., Latshaw, 452 F.3d at
1103, and the district court acted within its discretion in deny-
ing Lal’s motion. The district court was entitled to weigh the
equities as presented by the record before it, and in my view
the majority improperly supplants its own views for the rea-
soned analysis of the district court.

III.

I would AFFIRM the district court’s denial of Lal’s motion
for relief from the dismissal. Accordingly, I dissent.