Community Dental Services, Dba Smilecare Dental Group v. Stuart Tani, Dds

This appeal arises from the denial of a motion for relief from default judgment under Fed.R.Civ.P. 60(b). 1 We hold that the appellant has demonstrated “extraordinary circumstances” that warrant setting aside the default judgment and therefore reverse the district court. See Fed. R.Civ.P. 60(b)(6).

BACKGROUND

The underlying dispute in this case centers on the use of the trademarked term, “SmileCare,” to promote dental care services. The plaintiff-appellee, Community Dental Services d.b.a. SmileCare Dental Group (“CDS”), filed an action against defendant-appellant, Stuart Tani (“Tani”), for infringement of the trademark, dilution, and unfair competition as a result of Tani’s use of the term “SmileCare” to promote his dental practice.

In response to the filing of the action on May 13, 1999, 3 Tani consulted with his financial advisor, Jeff Stein (an attorney who subsequently resigned from the California State Bar with charges pending). Stein recommended that Tani retain attorney Eugene Salmonsen as counsel and Tani did as advised. Stein continued to work with Salmonsen in representing Tani in the early stages of the case. Both parties orally agreed to an extension of…

dissenting.

Today, the Court expands the scope of Federal Rule of Civil Procedure 60(b)(6) by allowing a default judgment against a client to be set aside where his attorney’s conduct constitutes gross negligence. Since I am of the opinion that this expansion is unwarranted and that the district *1173 court did not abuse its discretion in finding that Tani had not shown that circumstances beyond his control prevented his participation in the litigation, I respectfully dissent.

Rule 60(b)(6) provides that a default judgment may be set aside where “any other reason justifying relief’ exists. “In order to bring himself within the limited area of Rule 60(b)(6) a petitioner is required to establish extraordinary circumstances which prevented or rendered him unable to prosecute [his case].” Marietta v. Marine Cooks & Stewards Union, 448 F.2d 729, 730 (9th Cir.1971) (per curiam). Rule 60(b)(6) is to be used “sparingly as an equitable remedy to prevent manifest injustice ... [and] 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…

282 F.3d 1164 COMMUNITY DENTAL SERVICES, dba SmileCare Dental Group, Plaintiff-Appellee, v. Stuart TANI, DDS, Defendant-Appellant. No. 00-56450. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 7, 2001. Filed March 7, 2002. As Amended on Denial of Rehearing and Rehearing En Banc April 24, 2002. * COPYRIGHT MATERIAL OMITTED Dennis D. Burns, La Jolla, CA, for the defendant-appellant. John F. Cannon, Steven M. Hanle, Edward S. Kim, Stradling Yocca Carlson & Rauth, Newport Beach, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California, Robert H. Whaley, District Judge, Presiding. Before BROWNING, REINHARDT and TALLMAN, Circuit Judges. OPINION REINHARDT, Circuit Judge. 1 This appeal arises from the denial of a motion for relief from default judgment under Fed.R.Civ.P. 60(b). 1 We hold that the appellant has demonstrated "extraordinary circumstances" that warrant setting aside the default judgment and therefore reverse the district court. See Fed.R.Civ.P. 60(b)(6). BACKGROUND 2 The underlying dispute in this case centers on the use of the trademarked term, "SmileCare," to promote dental care…