Morella Lombardi v. SHAUN DONOVAN, Secretary, United States Department of Housing and Urban Development;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MORELLA LOMBARDI,
Plaintiff-Appellant,
v.
SHAUN DONOVAN, Secretary, United
States Department of Housing and Urban
Development; et al.,
Defendants-Appellees.
No. 13-55488
D.C. No. 2:11-cv-04264-MWF-
PLA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted February 5, 2015
Pasadena, California
Before: PREGERSON and W. FLETCHER, Circuit Judges, and CARR, District
Judge.**
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable James G. Carr, Senior United States District Judge for the
Northern District of Ohio, sitting by designation.
FILED
MAR 13 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Morella Lombardi sued the United States Department of Housing and Urban
Development and several of its officers and employees, alleging they violated Title
VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3(a), and the Rehabilitation Act of
1973, 29 U.S.C. § 701, et seq.
Defendants moved for summary judgment, but Lombardi’s counsel twice failed
to file a timely opposition. The district court, exercising its authority under Fed. R.
Civ. P. 56(e) to treat the motion as unopposed, held there were no material factual
disputes for trial and granted judgment for the defendants.
Before the court entered judgment, Lombardi’s attorney filed what he styled an
ex parte application for relief under Fed. R. Civ. P. 60(b). He argued that his failure
to file a timely opposition constituted “excusable neglect” under Rule 60(b)(1), and
that unspecified “extraordinary circumstances” warranted relief under Rule 60(b)(6).
The district court recognized that counsel’s pre-judgment filing was not a true Rule
60(b) motion but concluded that, even if the Rule applied, counsel had shown no basis
for relief under either provision.
Counsel filed no appeal on Lombardi’s behalf from the order granting summary
judgment. Rather, more than two months after the entry of final judgment, he moved
for relief under Rule 60(b)(6). His argument was that defendants’ summary-judgment
motion failed to show there was no genuine dispute of material fact, and that such a
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failure was an extraordinary circumstance. Citing the reasons set forth in its orders
granting summary judgment and denying counsel’s ex parte application, the district
court denied the motion.
Lombardi, still represented by the same lawyer who mishandled her case in the
district court, now appeals from the order denying the Rule 60(b)(6) motion. We
conclude the district court did not abuse its discretion in denying the motion. Latshaw
v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1100 (9th Cir. 2006).
First, Lombardi has identified no extraordinary circumstances warranting relief
from judgment under Rule 60(b)(6).
The only extraordinary circumstance Lombardi cites—that defendants’
summary-judgment motion was insufficient to show there were no disputed factual
issues for trial—is only a thinly disguised and entirely unfounded attack on the
correctness of the order granting summary judgment. If the district court erred in
granting summary judgment, Lombardi’s attorney should have appealed. Because he
did not do so, he could not use a Rule 60(b)(6) motion to make arguments properly
reserved for appeal. Plotkin v. Pac. Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir.
1982); Title v. United States, 263 F.2d 28, 31 (9th Cir. 1959).
Second, the record refutes Lombardi’s argument that the district court
misapplied the law in denying the Rule 60(b)(6) motion.
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According to Lombardi, when the district court denied her Rule 60(b)(6)
motion, it incorporated by reference only the reason it gave for concluding, in
connection with Lombardi’s ex parte application, that Lombardi had not shown
excusable neglect under Rule 60(b)(1). Thus, Lombardi contends, the district court
never considered whether defendants’ alleged failure to carry their burden at the
summary-judgment stage warranted relief from judgment.
Lombardi is wrong. When the district court denied the Rule 60(b)(6) motion,
it incorporated by reference “the reasons set forth in the Court’s Order Granting
Defendants’ Motion for Summary Judgment and Order Denying Lombardi’s Ex Parte
Application.” This statement shows the court relied not only on its no-excusable-
neglect finding, but also on its findings that (1) no extraordinary circumstances
warranted relief from judgment and (2) defendants had shown there were no genuine
issues of material fact for trial.
In sum: the District Judge, doing more to protect Lombardi’s right to be heard
than her own lawyer, exercised exemplary patience with an attorney who consistently
ignored the Court’s orders. Lombardi has no one to blame except her attorney. We
leave it to her to decide whether to pursue a malpractice action or file a complaint with
the appropriate disciplinary authorities.
AFFIRMED.
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