Kenneth S. Sylvester; Lisa Ann Sylvester v. MERCHANTS CREDIT CORPORATION, DBA Merchants Credit Association

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH S. SYLVESTER; LISA ANN
SYLVESTER,
Plaintiffs-Appellees,
v.
MERCHANTS CREDIT CORPORATION,
DBA Merchants Credit Association,
Defendant-Appellant.
No. 21-35101
D.C. No. 2:17-cv-00168-TSZ
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted August 30, 2021
Seattle, Washington
Before: HAWKINS, McKEOWN, and GOULD, Circuit Judges.
This appeal arises from the district court’s denial of Appellant Merchants
Credit Corporation’s (“Merchants”) motion for relief from judgment under Federal
Rule of Civil Procedure 60(b)(6). Appellant contends that the district court abused
its discretion by denying Merchants’ Rule 60(b)(6) motion because Merchants’ prior
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
OCT 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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counsel was grossly negligent with his representation of Merchants during the
pendency of the underlying lawsuit. Specifically, Merchants claims that its prior
counsel’s failure to oppose the Sylvesters’ summary judgment motion constituted
gross negligence, and the district court abused its discretion in denying the Rule 60
motion that would have relieved Merchants from the district court’s grant of
summary judgment for the Appellees. The district court did not abuse its discretion
in denying Merchants’ Rule 60(b)(6) motion. We affirm.
We review a district court’s denial of a motion under Federal Rule of Civil
Procedure 60(b)(6) for an abuse of discretion. Casey v. Albertson's Inc, 362 F.3d
1254, 1257 (9th Cir. 2004) (“Motions for relief from judgment pursuant to Rule
60(b) are addressed to the sound discretion of the district court and will not be
reversed absent an abuse of discretion.”) (CITING SEC v. Coldicutt, 258 F.3d 939,
941 (9th Cir. 2001); see also Martella v. Marine Cooks & Stewards Union, Seafarers
Int'l Union of N. Am., AFL-CIO, 448 F.2d 729, 730 (9th Cir. 1971) (“60(b) motions
are addressed to the sound discretion of the district court.” (internal citation
omitted)). “A district court abuses its discretion if it does not apply the correct law
or if it rests its decision on a clearly erroneous finding of material fact.” Casey, 362
F.3d at 1257 (citing Bateman v. U.S., 231 F.3d 1220, 1223 (9th Cir. 2000)).
The district court did not abuse its discretion by denying Merchants’ Rule
60(b)(6) motion because Merchants’s prior counsel’s actions did not constitute

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extraordinary circumstances. Prior counsel did not deliberately mislead Merchants,
nor did he deprive them of the opportunity to preserve their rights. See Lal v.
California, 610 F.3d 518, 524–25 (9th Cir. 2010) (quoting Cmty. Dental Servs. v.
Tani, 282 F.3d 1164 (9th Cir. 2002) (internal quotations omitted)). Merchants’
contention that its prior counsel was “grossly negligent” because he did not oppose
the Sylvesters’ motion for summary judgment fails.
“An attorney’s actions are typically chargeable to his or her client and do not
ordinarily constitute extraordinary circumstances warranting relief from judgment
under Rule 60(b)(6).” Lal, 610 F.3d at 524. An extraordinary circumstance includes
an attorney’s “gross negligence.” Id. Under Brooks v. Yates, the proper inquiry with
respect to a Rule 60(b) motion predicated on an attorney’s alleged gross negligence
is whether “extraordinary circumstances prevented [Merchants] from taking timely
action to prevent or correct an erroneous judgment . . ..” 818 F.3d 532 (9th Cir. 2016)
(per curiam) (citing Foley v. Biter, 793 F. 3d 998, 1002 (9th Cir. 2015)).
Here, Merchants cannot point to actions that amount to “gross negligence”
that prevented it from taking timely action to correct or prevent the district court’s
grant of summary judgment in the Sylvesters’s favor. Merchants’s prior counsel
made several filings throughout the case both before and after the Sylvesters moved
for summary judgment. Additionally, Merchants’s prior counsel, in his response to
a motion for attorney’s fees after the grant of summary judgement, indicated that

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Merchants’ lack of an opposition to the Sylvesters’s summary judgment motion was
intentional. Finally, Merchants maintained an active role in the litigation at the
district court. Merchants even mailed a check to the Sylvesters that was in
satisfaction of the district court’s judgement just three days after the judgement was
rendered. These facts show that Merchants was an active participant in the litigation.
We cannot conclude both that Merchants was aware of the judgment and sent a check
in satisfaction but was also prevented from taking timely action to prevent or correct
the entry of the judgement. Lal, 610 F.3d at 527. There is no showing that counsel’s
conduct was grossly negligent and given counsel’s many pleadings and efforts for
his client, there can be no serious claim of client abandonment. The district court
did not abuse its discretion when it denied Appellant Merchants’ Rule 60(b)(6)
motion.
AFFIRM.

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