NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 4 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

AARON GREENSPAN, No. 22-16110

Plaintiff-Appellant, D.C. No. 3:20-cv-03426-JD

v.

MEMORANDUM*

OMAR QAZI; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding

Submitted April 1, 2024** San Francisco, California

Before: HURWITZ and JOHNSTONE, Circuit Judges, and MORRIS,*** District Judge.

Aaron Greenspan appeals the dismissal of his defamation action against

Elon Musk and Tesla, the denial of a Federal Rule of Civil Procedure 60(b)

* 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 Brian M. Morris, Chief Judge for the District of Montana, sitting by designation. motion, and the denial of a motion to recuse the district judge. We review the

district court’s dismissal of a complaint for failure to state a claim de novo.

Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007).

We review for abuse of discretion a district court’s denial of a Rule 60(b) motion,

Casey v. Albertson’s Inc., 362 F.3d 1254, 1257 (9th Cir. 2004), and its denial of a

motion to recuse, United States v. Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010).

We have jurisdiction under 28 U.S.C. § 1291. Because the parties are familiar with

the facts and procedural history, we do not recite them here. We affirm.

1. The automatic stay provision of the Private Securities Litigation Reform

Act (“PSLRA”), 15 U.S.C. § 78u-4(b)(3)(B), does not conflict with Federal Rule

of Civil Procedure 26. Although “[a]ll laws in conflict with [rules of procedure]

shall be of no further force or effect after such rules have taken effect,” 28 U.S.C.

§ 2072(b), the PSLRA’s automatic discovery stay provision and Rule 26 can be

“read harmoniously.” See O’Neal v. Price, 531 F.3d 1146, 1150 (9th Cir. 2008).

The PSLRA merely implements an automatic stay of discovery that may be lifted

at the district court’s discretion, 15 U.S.C. § 78u-4(b)(3)(B), just as Rule 26 gives

the court discretion over the timing of discovery, Fed. R. Civ. P. 26(a)(1)(C); see

also Kobold v. Good Samaritan Regl. Med. Ctr., 832 F.3d 1024, 1048 n.16 (9th

Cir. 2016).

2. The PSLRA and Rules 8 and 9 also do not conflict. Rule 8(a)(2) requires a

2 “short and plain statement” while the PSLRA requires certain specific allegations

such as a description of why a statement is misleading, 15 U.S.C. § 78u-4(b)(1).

However, Rule 8 is of a piece with Rule 9’s particularity requirements, and the

PSLRA’s particularity requirements are “nearly identical to that under” Rule 9(b).

Rubke v. Capitol Bancorp Ltd., 551 F.3d 1156, 1165 (9th Cir. 2009). Thus a party

can satisfy Rules 8, 9, and the PSLRA at the same time.

3. The district court did not abuse its discretion in denying Greenspan’s Rule

60(b) motion. The motion improperly attempts to relitigate the merits of the

dismissal of his copyright claim. See Casey, 362 F.3d at 1261 (rejecting “a clear

attempt to relitigate [an] issue central to the merits of this case” because “the

merits of a case are not before the court on a Rule 60(b) motion”). Nor did the

district court abuse its discretion in denying Greenspan’s arguments based on

newly discovered evidence because Greenspan failed to demonstrate that his

evidence would have likely changed the outcome of the case had it been produced

earlier. See Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 (9th Cir.

2003). Finally, the district court did not abuse its discretion in denying

Greenspan’s Rule 60(b) arguments regarding evidence of an agency relationship

because Greenspan did not prove he was prevented from “fully and fairly

presenting [a] defense.” Casey, 362 F.3d at 1260 (quoting De Saracho v. Custom

Food Mach., Inc., 206 F.3d 874, 880 (9th Cir. 2000)).

3 4. The district court did not abuse its discretion in denying Greenspan’s

motion to recuse because he did not demonstrate that the district court’s

“impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). A motion for

recusal can be decided by the judge who is asked to recuse. United States v. Sibla,

624 F.2d 864, 868 (9th Cir. 1980).

5. The district court did not err in dismissing Greenspan’s defamation claims

because “a reasonable factfinder could [not] conclude that the contested

statement[s] implie[d] an assertion of objective fact.” Lieberman v. Fieger, 338

F.3d 1076, 1079 (9th Cir. 2003) (quoting Partington v. Bugliosi, 56 F.3d 1147,

1153 (9th Cir. 1995)).1

AFFIRMED.

1 The motion to strike Omar Qazi’s and Smick Enterprises, Inc.’s Answering Brief is denied as moot. The Motion to Strike and for Sanctions is denied. The motions for judicial notice are denied.

4