Judges of the Court
In re AVI, Inc., 389 B.R. 721, 724 (9th Cir. BAP 2008)
Dismissal of chapter 11 case was properly set aside, hwere order approving a settlement did not include a provision for dismissal of the case upon the occurrence of certain events, and the case was subsequently dismissed without notice to creditors. Court properly set aside the dismissal under Rule 60(b).
In re International Fibercom, Inc., 503 F.3d 933 (9th Cir. 2007)
Bankruptcy court properly set aside an order approving the assumption of an executory contract under Rule 60(b)(6) based upon an error of law, i.e. that the workers compensation contract was not executory, even though the order was set aside two years after it was entered. The assumption motion also violated the court’s local rule requiring conspicuous notice that a claimant is taking a security interest in prepetition assets to secure a post-petition debt.
In re Wylie, 349 B.R. 204 (9th Cir. BAP 2006)
Failure to respond to objection to its claim,and failure to establish an excuse for this failure, justified denial of the claim other than on the merits. Once ten days has passed, claimant’s right to seek reconsideration under § 502(j) is gone. He is left to seek reconsideration under Rule 60(b), but is limited to the narrow grounds set forth in the rule. Claimant did not establish prerequisites for relief under Rule 60(b)(1), (b)(3), or (b)(6).
In re Peralta, 317 B.R. 381 (9th Cir. BAP 2004)
“The three factors to consider with respect to vacating a default judgment are; (1) whether the defendant’s culpable conduct led to the default; (2) whether the defendant has a meritorious defense; and (3) whether reopening the default judgment would prejudice the plaintiff.” The concept of culpable conduct is coextensive with excuseable neglect. Prejudice can be established from the legal expense to the opposing party in having to address defenses that are meritless.
In re Williams, 287 B.R. 787 (9th Cir. B.A.P. 2002)
Motion to set aside default judgment brought 81 days after movant knew of judgment being entered was untimely.
Laurino v. Syringa General Hospital, 279 F.3d 750 (9th Cir. 2002)
“Rule 60(b)(1) provides that a court may relieve a party from a final judgment on the basis of excusable neglect. ' [T]he determination of whether neglect is excusable is an equitable one that depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.' ” [citation omitted]
Community Dental Services v. Tani, 282 F.3d 1164 (9th Cir. 2002)
“...[W]here the client demonstrated gross negligence on the part of his counsel, a default judgment against the client may be set aside pursuant to Rule 60(b)(6).”
Speiser, Krause & Madole P.C. v. Ortiz, 271 F.3d 884 (9th Cir. 2001)
“While an attorney's egregious failure to read and follow clear and unambiguous rules might sometimes be excusable neglect, “mistakes construing the rules do not usually constitute 'excusable' neglect.”
Bellevue Manor Assos. v. U.S., 165 F.3d 1249 (9th Cir. 1999) (Rule 60(b)(5))
In re Mulvania, 214 B.R. 1, (9th Cir. B.A.P. 1997)
In re Virtual Vision, Inc., 124 F.3d 1140 (9th Cir. 1997)
Creditor’s own collapse is insufficient ground for failing to comply with discovery request in bankruptcy proceeding. Entry of default proper. Rule 60(b) motion denied.
Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir. 1997)
Pioneer Inv. Services standard for excusable neglect applies to Rule 60(b)
(Duwamish Indian Tribe) U.S. v. State of Washington, 98 F.3d 1159 (9th Cir. 1996), cert. denied, 522 U.S. 806 (1997)
In re Negrete, 183 B.R. 195 (9th Cir. B.A.P. 1995), aff’d. 103 F.3d 139 (9th Cir. 1996)
Untimely motion for reconsideration of fee order must show exceptional or extraordinary circumstances
In re Hunter, 66 F.3d 1002 (9th Cir. 1995)
“Independent action” to relieve party of a judgment from a settlement was without jurisdiction basis
In re Weston, 41 F.3d 493 (9th Cir. 1994)
Motion for rehearing filed by attorney for nonparty tolls time limit for appeal from sanctions order against them. Motion for reconsideration filed by one tolls appeal time for all.
Kyle v. Campbell Soup Co., 28 F.3d 928 (9th Cir. 1994), cert. denied, 513 U.S. 867 (1994)
Mistake of law (i.e., time limits under Rule 6(b)) does not constitute excusable neglect
U.S. v. RG & B Contractors, 21 F.3d 952 (9th Cir. 1994)
60(b)(1) - error caused by corp restructuring not excusable neglect Pioneer Inv. Services discussed
In re Cossio, 163 B.R. 150 (9th Cir. B.A.P. 1994), aff’d. 56 F.3d 70 (9th Cir. 1995)
Debtor’s attorney who did not update address and was served at old address was properly served under B.R. 7004(b)(9)
Pioneer Inv. Services Co. v. Brunswick Assocs. Ltd Partnership, 507 U.S. 380, 113 S.Ct. 1489 (1993)
4 part test to determine whether circumstances surrounding the party’s omission constitutes “excusable neglect” (weakens In re Hammer’s holding re “culpable conduct”):
1. Danger of prejudice to the debtor
2. The length of the delay and its potential impact on judicial proceedings
3. The reason for the delay, including whether it was within the reasonable control of the movant
4. Whether the movant acted in good faith
See also In re Nunez, 196 B.R. 150 (9th Cir. B.A.P. 1996)
In re Golob, 146 B.R. 566 (9th Cir. B.A.P. 1992)
Not use Rule 60(b)(6) if (1)(2)(3) are available. Because they were, 1 year statute barred motion
U.S. v. Alpine Land & Reservoir co., 984 F.2d 1047, (9th Cir. 1993), cert. denied, 510 U.S. 813, 114 S.Ct. 60 (1993)
60(b)(6) only available under extraordinary circumstances. Need to show “injury and that circumstances beyond its control prevented timely action to protect its interests”
In re Atkins, 134 B.R. 936 (9th Cir. B.A.P. 1992)
Rule 60(b) cannot be used as s substitute for an appeal. May not reargue the merits of a final order.
In re Hammer, 940 F.2d 524 (9th Cir. 1991)
Test for setting aside default judgment; may be weakened by Pioneer Services, supra
Jones v. Aero/Chem Corp., 921 F.2d 875 (9th Cir. 1990)
60(b)(2) - Test for finding misconduct regarding discovery:
1. Due diligence in discovery requests by plaintiff ?
2. Actual or constructive knowledge of missing documents by defendant ?
3. Defendant did not divulge existence
Transgo Inc. v. Ajac Transmission Parts Corp, 911 F.2d 363 (9th Cir. 1990)
60(b)(5) Test for changed circumstances in fact or law
In re Cleanmaster Industries, Inc., 106 B.R. 628 (9th Cir. B.A.P. 1989)
Affidavits did not establish why they could not have been discovered at trial, thus not newly discovered evidence. See School District 15 (under rule 59 re summary judgment )
Nevitt v. U.S., 886 F.2d 1187 (9th Cir. 1989)
One year statute of limitations for (b)(1), (2) or (3)
Alexander v. Robertson, 882 F.2d 421 (9th Cir. 1989)
“Fraud” sufficient to set aside judgment must result in damage to the moving party
Gregorian v. Izvestra, 871 F.2d 1515 (9th Cir. 1989), cert. denied, 493 U.S. 891 (1989)
Culpability required to deny setting aside default
In re Donovan, 871 F.2d 807 (9th Cir. 1989)
Motion to reconsider dismissal is deemed motion under Rule 60(b). Thompson v. Housing Authority, 782 F.2d 829, 832 (9th Cir. 1986), cert. denied, 479 U.S. 829, 107 S.Ct. 112 (1986)
In re Martinelli, 96 B.R. 1011 (9th Cir. B.A.P. 1988)
Advice of counsel must be grossly negligent to constitute extraordinary circumstances under Rule 60(b)(6)