ESA Engineering Corp. v. Mitsubishi Heavy Industries America, Inc.

MEMORANDUM ***

ESA Engineering Corporation appeals from the district court’s order denying ESA’s Fed.R.Civ.P. 60(b) motion for reconsideration of the dismissal of ESA’s action for failure to prosecute. ESA’s notice of appeal designated only the order denying ESA’s motion for reconsideration. “An appeal from a denial of a Rule 60(b) motion brings up only the denial of the motion for review, not the merits of the underlying judgment.” Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir.1991); Hayward v. Britt, 572 F.2d 1324, 1325 (9th Cir.1978). See Fed. R.App. P. 3(c)(1)(B) (appeal notice must “designate the judgment, order, or part thereof being appealed”). 1 We review the district court’s denial of ESA’s motion for reconsideration for abuse of discretion. Leslie v. Grupo ICA, 198 F.3d 1152, 1157 (9th Cir.1999); Fireman’s Fund Ins. Companies v. Alaskan Pride Partnership, 106 F.3d 1465, 1470-71 (9th Cir.1997).

The district court did not abuse its discretion in denying ESA’s motion for reconsideration. The district court found that plaintiffs failure to substitute new counsel and to pursue its action was not excusable neglect under Fed.R.Civ.P. 60(b)(1). With respect to the failure to…