Rule 36-3. -- 1 of 4 -- CENTER, LLC v. International Longshore

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALMONT AMBULATORY SURGERY
CENTER, LLC, a California limited
liability company; CIRO SURGERY
CENTER, LLC, a California limited
liability company; EAST BAY
AMBULATORY SURGERY, LLC, a
California limited liability company;
MODERN INSTITUTE OF PLASTIC
SURGERY & ANTIAGING, INC., a
California corporation; NEW LIFE
SURGERY CENTER, LLC, DBA Beverly
Hills Surgery Center, a California limited
liability company; ORANGE GROVE
SURGERY CENTER, LLC, a California
limited liability company; SAN DIEGO
AMBULATORY SURGERY CENTER,
LLC, a California limited liability
company; WEST HILLS SURGERY
CENTER, LLC, a California limited
liability company; INDEPENDENT
MEDICAL SERVICES, INC., a California
corporation; BAKERSFIELD SURGERY
INSTITUTE, LLC; VALENCIA
AMBULATORY SURGERY CENTER,
LLC; PALMDALE AMBULATORY
SURGERY CENTER, LLC; PROPERTY
CARE INSURANCE, INC.; SAN
JOAQUIN VALLEY SURGERY
Nos. 16-56241
17-55285
D.C. No.
2:14-cv-02177-MWF-VBK
MEMORANDUM*
FILED
JUN 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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CENTER, LLC; SKIN CANCER &
RECONSTRUCTIVE SURGERY
SPECIALISTS OF BEVERLY HILLS,
INC.; SKIN CANCER &
RECONSTRUCTIVE SURGERY
SPECIALISTS OF WEST HILLS, INC.;
SURGERY CENTER MANGEMENT;
TOP SURGEONS, LLC; WOODLAKE
AMBULATORY; 1-800-GET-THIN,
LLC; CINDY OMIDI; JULIAN OMIDI;
MICHAEL OMIDI; VALLEY
SURGICAL CENTER, LLC,
Plaintiffs-Appellants,
v.
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION; PACIFIC
MARITIME ASSOCIATION;
INTERNATIONAL
LONGSHOREMEN’S AND
WAREHOUSEMEN’S UNION-PACIFIC
MARITIME ASSOCIATION WELFARE
PLAN; ILWU-PMA COASTWISE
INDEMNITY PLAN,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
2

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Submitted May 14, 2019**
Seattle, Washington
Before: O’SCANNLAIN and FRIEDLAND, Circuit Judges, and EZRA,*** District
Judge.
Plaintiff Almont Ambulatory Surgery Center, LLC along with seven other
surgical centers and one physicians’ medical group (collectively “Almont”) appeal
five orders by the district court. Because the facts are known to the parties, we do not
repeat them here.
We reject Almont’s first challenge on appeal—namely, that the district court
improperly dismissed the case for lack of prosecution. See Fed. R. Civ. P. 41(b).
Almont’s failure to secure counsel by the court’s deadline constituted a lengthy and
unreasonable delay in prosecution and prejudiced the employee welfare plan’s ability
to defend against suit. In light of the factors described in Henderson v. Duncan, 779
F.2d 1421, 1423 (9th Cir. 1986), the court did not abuse its discretion.
Nor did the court abuse its discretion in denying Almont’s motion for relief
from judgment pursuant to Federal Rule of Civil Procedure 60(b). Almont’s proffered
reasons for failing to retain counsel by the court’s deadline are contradicted by the
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
3

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record and do not establish excusable neglect as required by Rule 60(b). See Bateman
v. U.S. Postal Serv., 231 F.3d 1220, 1222 (9th Cir. 2000).
Almont’s remaining challenges to the district court’s denials of its motion for
disqualification, its application for in camera review, and its Federal Rule of Civil
Procedure 59(e) motion echo those raised in Almont Ambulatory Surgery Center, LLC
v. UnitedHealth Group, Inc., No. 17-55301, – F. App’x – (9th Cir. ___, 2019). We
reject them for the same reasons. Id.1
AFFIRMED.
1 We deny Almont’s motion to file certain excerpts of record in camera and
under seal, filed with this court on April 24, 2018. We also deny Almont’s motions
to supplement the record on appeal and to file certain exhibits in camera and under
seal, filed August 30, 2018.
4

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