FILED
NOT FOR PUBLICATION MAR 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHRISTINE WOLF, No. 08-55791
Plaintiff - Appellant, D.C. No. 2:05-cv-03535-PSG-RZ
v.
MEMORANDUM *
LORING WARD INTERNATIONAL,
LTD., f/k/a Assante Newco III Ltd.; et al.,
Defendants - Appellees.
CHRISTINE WOLF, No. 08-55840
Plaintiff - Appellee, D.C. No. 2:05-cv-03535-PSG-RZ
v.
LORING WARD INTERNATIONAL,
LTD., FKA Assante Newco III Ltd.; et al.,
Defendants - Appellants,
and
MARTIN WEINBERG; et al.,
Defendants.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
CHRISTINE WOLF, No. 08-55842
Plaintiff - Appellee, D.C. No. 2:05-cv-03535-PSG-RZ
v.
LORING WARD INTERNATIONAL,
LTD., FKA Assante Newco III Ltd.; et al.,
Defendants,
and
ROBERT PHILPOTT,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted March 5, 2010
Pasadena, California
Before: GOULD, IKUTA and N.R. SMITH, Circuit Judges.
Christine Wolf (“Wolf”) appeals the district court’s denial of her Motion for
Relief from the Dismissal. We reverse, because the district court did not properly
identify the Pioneer-Briones standard or conduct the analysis set forth in that
standard. Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009).
2
After the district court dismissed her case for lack of subject matter
jurisdiction, Wolf filed her Rule 60(b) Motion for Relief for “excusable neglect.”
“A district court’s denial of relief from a final judgment, order, or proceeding
under Federal Rule of Procedure 60(b) is reviewed for abuse of discretion.” Id. at
1191–92. The Supreme Court has set forth an equitable analysis for determining
whether a party is entitled to relief for excusable neglect under Rule 60(b)(1).
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395
(1993); see also Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.
1997). A district court abuses its discretion when it fails to identify the standard
set out in Pioneer and Briones and fails to analyze the motion before it under that
standard. Lemoge, 587 F.3d at 1193. Further, a proper application of the Pioneer-
Briones standard reveals that Wolf should be permitted to amend her complaint,
correcting it to allege her state of citizenship. Id. We decline to exercise our
discretionary jurisdiction under 28 U.S.C. § 1653 to amend the complaint.
Defendants argue that Wolf failed to raise excusable neglect as grounds for
relief before the district court. We disagree. Although we recognize that Wolf
primarily relied upon mistake as the proper grounds for relief before the district
court, excusable neglect was raised as an alternative basis for relief.
3
Having reversed the district court’s final order, we decline to review the
district court’s interlocutory order denying Defendants’ Motion for Summary
Judgment.
We deny all motions for judicial notice as moot.
The district court’s denial of Wolf’s Motion for Relief is REVERSED and
REMANDED with instructions to the district court to grant Plaintiff's Rule 60(b)
Motion and permit the Plaintiff to amend her complaint.
4