Bob Rhodes v. Raytheon Company

FILED
NOT FOR PUBLICATION
OCT 05 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BOB RHODES, an individual, No. 15-16052

Plaintiff-Appellant, D.C. No. 4:10-cv-00625-RCC

v.
MEMORANDUM*
RAYTHEON CO., a Delaware
corporation,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief Judge, Presiding

Submitted January 8, 2016**
San Francisco, California

Before: THOMAS, Chief Judge, McKEOWN, Circuit Judge, and KENDALL,***
District Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Virginia M. Kendall, United States District Judge for
the Northern District of Illinois, sitting by designation.
 Bob Rhodes appeals the district court’s denial of his motion for

reconsideration under Federal Rule of Civil Procedure 60(b)(6). Because the

parties are familiar with the facts and procedural history of this case, we need not

recite them here. We affirm.

We review an order denying a Rule 60(b)(6) motion for abuse of discretion.

Washington v. Ryan, — F.3d —, 2016 WL 4269871, at *3 (9th Cir. Aug. 15, 2016)

(en banc) (citing Casey v. Albertson’s Inc., 362 F.3d 1254, 1257 (9th Cir. 2004)).

Relief under Rule 60(b)(6) is to be “used sparingly as an equitable remedy to

prevent manifest injustice and is to be utilized only where extraordinary

circumstances prevented a party from taking timely action to prevent or correct an

erroneous judgment.” Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008)

(quoting Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir.

2006)). “[A] motion for reconsideration should not be granted, absent highly

unusual circumstances, unless the district court is presented with newly discovered

evidence, committed clear error, or if there is an intervening change in the

controlling law,” and it “may not be used to raise arguments or present evidence

for the first time when they could reasonably have been raised earlier in the

litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d

873, 880 (9th Cir. 2009) (citations and quotation marks omitted). In addition, a

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motion for reconsideration “must be made within a reasonable time.” Fed. R. Civ.

P. 60(c)(1).

The district court did not abuse its discretion when it denied Rhodes’s

motion for reconsideration. Rhodes sought reconsideration on the basis of a sworn

declaration that he obtained from an EEOC enforcement official during the

pendency of his first appeal. See Rhodes v. Raytheon Co., 555 F. App’x 665 (9th

Cir. 2014) (“Rhodes I”). We denied his motion to supplement the record during

the appeal. Rhodes took no further action with respect to the declaration until six

months after the mandate issued in Rhodes I.1 Even assuming that Rhodes can

show that he suffered an injury, he has not demonstrated that there were

circumstances beyond his control that prevented him from acting sooner on the

affidavit once appellate proceedings had concluded. See Washington, — F.3d —,

2016 WL 4269871, at *11 (noting that relief under Rule 60(b)(6) requires a

showing that the moving party was affected by “external, extraordinary

circumstances” and was “faultless in the delay” (citations and quotation marks

omitted); Harvest, 531 F.3d at 749.

1
Rhodes filed his 60(b)(6) motion more than two years after first obtaining
the sworn declaration.
3
 The federal rules require that a 60(b)(6) motion be brought “within a

reasonable time,” Fed. R. Civ. P. 60(c), a standard that we have said “depends

upon the facts of each case, taking into consideration the interest in finality, the

reason for delay, the practical ability of the litigant to learn earlier of the grounds

relied upon, and prejudice to other parties.” Ashford v. Steuart, 657 F.2d 1053,

1055 (9th Cir. 1981). Here, Rhodes explains the peculiarities of how the EEOC

handled his claim in 2010. But he offers no explanation for why the six months

following the issuance of the mandate in Rhodes I were insufficient to act on the

EEOC declaration. We do not decide whether six months from the issuance of the

mandate was a “reasonable time” under these circumstances. Because Rhodes

gives no reasons for the delay at all, on this record, we cannot say that the district

court abused its discretion when it denied the motion as untimely.

It was also within the district court’s discretion to determine that the

declaration did not—on its own—amount to extraordinary circumstances in this

case. As the district court noted, the sworn declaration, if true, would render the

facts underpinning its original decision “unstable.” But the sworn declaration does

not dispositively rebut the Payan presumption that Rhodes’s EEOC notice was

mailed on its date of issue. See Rhodes I, 555 F. App’x at 667 (discussing Payan v.

Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1123–26 (9th Cir. 2007)).

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Suggestive evidence does not compel the district court to grant 60(b)(6) relief. The

district court might contemplate a totally different motion to reconsider if, for

example, Rhodes furthered developed the information in the declaration and

learned that his EEOC notice was in fact prepared after the agency’s mail pickup

time on the date of issue. Of course, that was not the situation facing the district

court here.2 On the record before the district court, it was within the court’s

discretion to deny relief.

We do not reach whether Rhodes should have filed his motion under one of

the other provisions of Rule 60(b), because even if he were able to bring a 60(b)(6)

motion, the district court was within its discretion to deny it. Further, because the

district court’s denial of Rhodes’s motion to reconsider is dispositive in this matter,

we need not—and do not—address any of the other arguments that Rhodes raises

on appeal.

AFFIRMED

2
Any distinct motion for reconsideration would also likely be denied as
untimely without an explanation from Rhodes as to why he waited to act following
the conclusion of proceedings in Rhodes I.
5