NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 28 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIKA YULIANNA GARCIA, No. 20-55670

Plaintiff-Appellant, D.C. No. 2:17-cv-06380-DSF-AFM v.

UNITED STATES OF AMERICA, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Submitted July 26, 2021** Pasadena, California

Before: M. SMITH and OWENS, Circuit Judges, and ROBRENO,*** District Judge.

Erika Garcia (“Garcia”) appeals from the district court’s judgment denying

her relief under Federal Rules of Civil Procedure 60(b)(4), 60(b)(6), and 60(d)(3).

* 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). *** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. For motions to set aside the judgment pursuant to Federal Rule of Civil Procedure

60, we review for abuse of discretion. United States v. Estate of Stonehill, 660

F.3d 415, 443 (9th Cir. 2011). As the parties are familiar with the facts, we do not

recount them here. We affirm.

1. The district court did not err in denying Garcia’s Rule 60(b)(4) and

60(b)(6) motion because Garcia failed to file the motion within a “reasonable

time.” See Fed. R. Civ. P. 60(c)(1). “What constitutes ‘reasonable time’ depends

upon the facts of each case, taking into consideration the interest in finality, the

reason for delay, the practical ability of the litigant to learn earlier of the grounds

relied upon, and prejudice to the other parties.” Lemoge v. United States, 587 F.3d

1188, 1196 (9th Cir. 2009) (citation omitted).

Here, Garcia waited over 20 months after the judgment to file her motion

and did not provide a sufficient explanation for the delay. See Hammer v. Drago,

940 F.2d 524, 527 (9th Cir. 1991) (holding appellant’s two-year delay in objecting

to the default judgment was not “within a reasonable time.”) Although Garcia

claims her counsel did not discover the alleged misrepresentation until receipt of

the Order to Show Cause hearing transcript, she fails to explain why she could not

have obtained the hearing transcript earlier and why she did not inquire into the

statements at the Order to Show Cause hearing, which resulted in an order for her

to produce her employment records.

2 Even assuming a 20-month delay in filing her motion was reasonable,

Garcia has not shown that the district court’s judgment is void under Rule 60(b)(4)

or that there are “extraordinary circumstances” warranting relief under Rule

60(b)(6). See Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981) (per

curiam); Fed. R. Civ. P. 60(b)(4), (6).

Rule 60(b)(4) allows a party to seek relief from a “void” judgment “only in

the rare instance where a judgment is premised either on a certain type of

jurisdictional error or on a violation of due process that deprives a party of notice

or the opportunity to be heard.” United Student Aid Funds, Inc. v. Espinosa, 559

U.S. 260, 271 (2010). Here, the district court’s judgment was not “premised” on

any purported due process violation committed at the Order to Show Cause

hearing. See id. Rather, the judgment was based on Garcia’s failure to oppose the

motion to dismiss. Thus, even if the order compelling documents issued after the

hearing is void, the overall judgment is not void.

Rule 60(b)(6) allows a party to seek relief from a final judgment for “any

other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). It is “to be utilized only

where extraordinary circumstances prevented a party from taking timely action to

prevent or correct an erroneous judgment.” United States v. Alpine Land &

Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). “[R]elief normally will not be

3 granted unless the moving party is able to show both injury and that circumstances

beyond its control prevented timely action to protect its interests.” Id.

Here, Garcia has not shown that “circumstances beyond [her] control

prevented timely action to protect [her] interests.” See id; cf. Klapprott v. United

States, 335 U.S. 601, 613-14 (1949) (setting aside a judgment under Rule 60(b)(6)

in a denaturalization proceeding because petitioner had been incarcerated, ill, and

without counsel for the four years following the judgment). Even assuming

Garcia’s circumstances were “extraordinary,” the district court did not abuse its

discretion in denying the Rule 60(b)(6) motion because the circumstances at the

Order to Show Cause hearing did not contribute to the overall outcome of the case.

The district court made clear it would have dismissed the case for Garcia’s failure

to oppose the motion to dismiss alone.

2. The district court did not err in denying Garcia’s Rule 60(d)(3) motion to

set aside the judgment because the alleged misrepresentation did not constitute

fraud on the court. To constitute fraud on the court, “the relevant

misrepresentations must go ‘to the central issue in the case’ and must ‘affect the

outcome of the case.’” United States v. Sierra Pac. Indus., Inc., 862 F.3d 1157,

1168-69 (9th Cir. 2017) (citations omitted). When the moving party “through due

diligence could have discovered the non-disclosure” or alleged misrepresentation,

such fraud does not “disrupt the judicial process” and does not amount to fraud on

4 the court. Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 780 (9th Cir.

2003).

Here, the alleged misrepresentation does not constitute fraud on the court

because it did not “affect the outcome of the case” and could have been discovered

earlier through due diligence. See Sierra Pac., 862 F.3d at 1168. The district court

dismissed the case because of Garcia’s failure to oppose the motion to dismiss.

See V.V.V. & Sons Edible Oils Ltd. v. Meenakshi Overseas, LLC, 946 F.3d 542,

547 (9th Cir. 2019). Thus, the alleged misrepresentation did not affect the

outcome of the case. Moreover, Garcia “through due diligence could have

discovered” the alleged fraud earlier by requesting a transcript of the hearing. See

Appling, 340 F.3d at 780.

AFFIRMED.

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