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NOT FOR PUBLICATION JUL 31 2012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.
4