NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 20 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH S. SYLVESTER; LISA ANN No. 21-35101

SYLVESTER,

D.C. No. 2:17-cv-00168-TSZ Plaintiffs-Appellees,

v. MEMORANDUM*

MERCHANTS CREDIT CORPORATION,

DBA Merchants Credit Association,

Defendant-Appellant.

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. 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

2 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

3 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.

4