Bank of America, N.a.; Federal National Mortgage Association v. Los Prados Community Association; Nevada Association Services, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BANK OF AMERICA, N.A.; FEDERAL
NATIONAL MORTGAGE
ASSOCIATION,
Plaintiffs-Appellees,
v.
LOS PRADOS COMMUNITY
ASSOCIATION; NEVADA
ASSOCIATION SERVICES, INC.,
Defendants,
and
WILLISTON INVESTMENT GROUP,
LLC,
Defendant-Appellant.
No. 20-16022
D.C. No.
2:16-cv-03008-APG-EJY
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted December 6, 2021**
San Francisco, California
* 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).
FILED
DEC 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: WARDLAW, BRESS, and BUMATAY, Circuit Judges.
Bank of America, N.A. (BANA) and Federal National Mortgage Association
(FNMA) filed suit against Williston Investment Group, LLC (Williston) for quiet
title, declaratory relief, injunctive relief, and damages. BANA and FNMA moved
for partial summary judgment on their quiet title and declaratory relief claims, and
after Williston failed to timely oppose their motion, the district court granted
partial summary judgment in favor of BANA and FNMA. Nearly three months
after Williston’s opposition was due and over six weeks after the district court
granted summary judgment, Williston filed a Rule 60(b)(1) motion for relief from
judgment due to “mistake, inadvertence, surprise, or excusable neglect.” Fed. R.
Civ. P. 60(b)(1). The district court denied Williston’s motion, and Williston timely
appealed this denial. Reviewing for abuse of discretion, see Mackey v. Hoffman,
682 F.3d 1247, 1248 (9th Cir. 2012), we affirm.
1. The district court did not abuse its discretion in finding that Williston
failed to demonstrate excusable neglect or inadvertence under Rule 60(b)(1). To
determine whether a party’s failure to meet a deadline constitutes excusable
neglect or inadvertence under Rule 60(b)(1), “courts must apply a four-factor
equitable test, examining: (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.” Ahanchian v. Xenon

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Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010); see also Harvest v. Castro,
531 F.3d 737, 746 (9th Cir. 2008).
We may affirm on any ground fairly supported by the record.1 Applying the
four-factor equitable test here, the record supports the district court’s denial of
Rule 60(b)(1) relief. See Ahanchian, 624 F.3d at 1261–62. First, as to the
prejudice factor, although granting the Rule 60(b)(1) motion would have deprived
BANA and FNMA of a “quick victory” at summary judgment, a mere delay
constitutes at most a “minimal” prejudice; thus, this factor weighs slightly in favor
of Williston. See Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224–25 (9th Cir.
2000).
Second, Williston’s lengthy delay substantially impacted the proceedings.
To this day, Williston has failed to file an opposition to BANA and FNMA’s
motion for summary judgment, and it did not file its Rule 60(b)(1) motion until
nearly three months after the deadline for its summary judgment response, over six
weeks after the district court granted plaintiffs’ summary judgment motion, and
two weeks after the deadline to respond to plaintiffs’ motion for entry of judgment.
1 The district court based its decision on Williston’s lack of a meritorious
defense, rather than applying the Pioneer/Briones factors discussed in Ahanchian.
See Ahanchian, 624 F.3d at 1261. Although the district court did not apply the
four-factor equitable test to Williston’s motion, we may apply this test on appeal
and affirm if the record reasonably supports the district court’s conclusion. See
M.D., by and through Doe v. Newport-Mesa Unified Sch. Dist., 840 F.3d 640, 643
(9th Cir. 2016).

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Cf. Harvest, 531 F.3d at 747 (deeming a 64-day delay substantial). This has
caused a months-long delay in the resolution of this case, restricting plaintiffs’
ability to collect profits from their investment.
Third, Williston’s asserted excuses for the delay contradict the record. On
the one hand, Williston blames its delay on a calendaring mistake, but it filed a
joint interim status report on February 17, 2020, in which it acknowledged the
plaintiffs’ then-pending summary judgment motion—an event that should have
“prompted [Williston] to recalculate the due date.” See Washington v. Ryan, 833
F.3d 1087, 1099 (9th Cir. 2016). On the other hand, Williston claims that it was
taken off guard by the motion because it was filed after a lengthy stay in the case.
However, the stay was lifted on September 11, 2019, and the summary judgment
motion was filed over three months later on December 24, 2019, allowing
Williston ample time to resume monitoring the case’s status and deadlines.
Finally, we must at least question whether Williston made this motion in
good faith, given that it claims it was ignorant of the summary judgment motion
even though it filed a joint interim status report acknowledging the pending
motion. Therefore, given that the first factor weighs only slightly in favor of
Williston and the latter three factors weigh heavily in favor of the plaintiffs, the
district court did not abuse its discretion in denying Rule 60(b)(1) relief.

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2. Williston has also failed to allege a mistake or surprise that warrants
Rule 60(b)(1) relief. As stated above, Williston was aware of the motion for
summary judgment as early as February 17, 2020. Thus, Williston’s choices to not
file a response to the summary judgment motion, ignore the court’s order granting
the summary judgment motion, and wait for months to address the judgment by
filing a Rule 60(b)(1) motion were “deliberate actions,” rather than mistakes
justifying relief under Rule 60(b)(1). See Latshaw v. Trainer Wortham & Co., Inc.,
452 F.3d 1097, 1101 (9th Cir. 2006). Nor is there any reason to believe that the
partial summary judgment motion constituted a surprise under Rule 60(b)(1), given
Williston’s awareness of the motion as of February 17, 2020.
AFFIRMED.

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