FILED
NOT FOR PUBLICATION DEC 10 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FRANCIS PUENTE, No. 08-56258
Plaintiff - Appellant, D.C. No. 2:07-cv-05809-PSG-
FMO
v.
COUNTY OF LOS ANGELES; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted December 8, 2009 **
Pasadena, California
Before: THOMPSON and SILVERMAN, Circuit Judges, and BOLTON, ***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
-2-
Plaintiff Francis Puente appeals from both the district court’s order
dismissing his action against the County of Los Angeles, the County of Los
Angeles Sheriff, Lee Baca, and John H. Clark, and its denial of his post-judgment
motion for relief from judgment pursuant to Federal Rules of Civil Procedure
60(b)(1), 60(b)(3) and 6(b)(1), as well as Central District of California Local Rule
7-18. We have jurisdiction to review only the denial of Plaintiff’s post-judgment
motion, pursuant to 28 U.S.C. § 1291, and we affirm.1
First, the district court did not abuse its discretion by declining to vacate its
dismissal order based on Plaintiff’s claim that Defendants’ motion to dismiss was
untimely. A motion to dismiss for failure to exhaust administrative remedies must
be made as an unenumerated Fed. R. Civ. P. 12(b) motion, and need not be filed
before a responsive pleading. See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.
2003); Fed. R. Civ. P. 12(b) (“A motion asserting any of these defenses [e.g., the
1
The district court granted Defendants’ motion on April 23, 2008, but
Plaintiff did not file his Rule 60 motion until May 28, 2008. Plaintiff filed only
one notice of appeal, on July 31, 2008. Because Plaintiff filed his Rule 60 motion
more than 10 days after the district court granted Defendants’ motion to dismiss,
Plaintiff’s motion did not toll the time in which to appeal the granting of the
motion to dismiss, which expired on May 23, 2008. See Fed. R. App. P.
4(a)(1)(A), (4)(vi); Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1462-63
(9th Cir. 1992). Accordingly, we do not have jurisdiction to consider any
challenges to the district court’s April 23, 2008 decision to grant Defendants’
motion to dismiss.
-3-
defenses listed at 12(b)(1)-(7)] must be made before pleading if a responsive
pleading is allowed.”). Defendants asserted their exhaustion defense in their
answer to the complaint, and moved to dismiss pursuant to Fed. R. Civ. P. 12(b).
Consequently, Plaintiff’s claim provided no basis for relief under either Rule 60 or
Local Rule 7-18, as Defendants’ motion was not untimely.
Second, the district court properly denied Plaintiff’s Rule 60(b)(1) motion
based on excusable neglect. Even if email problems prevented Plaintiff’s counsel
from receiving notice of Defendants’ motion to dismiss until April 9,
2008—roughly two weeks before the court ruled on that motion—counsel
“decided to wait and see what the District Court’s ruling would be” and filed
nothing. The district court properly concluded that counsel’s gamble did not
amount to excusable neglect under Rule 60(b)(1). See Engleson v. Burlington N.
R.R. Co., 972 F.2d 1038, 1043 (9th Cir. 1992).
Third, the district court properly denied Plaintiff’s Rule 60(b)(3) motion
based on the opposing party’s misconduct. The district court’s finding that counsel
for both sides had met and discussed the Defendants’ assertion of an exhaustion
defense—thereby satisfying the local rule’s meet-and-confer requirement—was not
clearly erroneous. Moreover, Plaintiff was fully aware of any alleged misconduct
once he received notice of Defendants’ motion to dismiss. See Casey v.
-4-
Albertson’s, Inc., 362 F.3d 1254, 1260 (9th Cir. 2004). Accordingly, the district
court did not abuse its discretion by denying Plaintiff relief pursuant to Rule
60(b)(3).
Fourth, the district court properly denied Plaintiff relief pursuant to Local
Rule 7-18 based on his post-judgment submission of evidence showing that he had
exhausted administrative remedies. The fact that counsel possessed this evidence,
not only before the district court granted the motion to dismiss, but throughout the
pendency of the case, precluded the availability of relief under the local rule. See
C.D. Cal. R. 7-18.
Finally, the district court did not abuse its discretion in denying Plaintiff
leave to amend his complaint. Leave to amend should only be granted “when
justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave to amend should not be
granted where the record demonstrates “bad faith, undue delay, prejudice to the
opposing party, and futility of amendment.” Ditto v. McCurdy, 510 F.3d 1070,
(9th Cir. 2007). Plaintiff waited a month after the district court dismissed his case
before seeking leave to amend, even though he knew of Defendants’ motion weeks
before the dismissal. Accordingly, the district court properly concluded that justice
did not require permitting amendment of the complaint.
AFFIRMED.