Sussman

MEMORANDUM ***

In 2000, Barry J. Sussman, an opthamol-ogist, sued his disability insurer for discontinuing coverage. The jury found in favor of the insurer, and Sussman appealed challenging the jury instruction proffered by the insurer which stated that he was not totally disabled if he could perform a “substantial portion” of his occupation. In an unpublished disposition, we held on appeal that the questioned instruction complied with state law and that Sussman’s failure to object to the jury instruction in the district court constituted a waiver of his argument on appeal. Sussman v. Unum Provident Corp., 65 Fed.Appx. 123, 124 (9th Cir.2003).

In 2007, Sussman filed this independent action seeking relief from the original judgment based on fraud on the court under Federal Rule of Civil Procedure 60(b). The district court dismissed the action under Federal Rule of Civil Procedure 12(b)(6). Sussman, proceeding pro se, filed a timely notice of appeal; we affirm the dismissal.

The district court did not abuse its discretion in determining that, even if Provident had argued an incorrect legal position regarding whether Sussman could perform a “substantial portion” of his work as…