Ram Nehara v. California Department of Corrections

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAM NEHARA,
Plaintiff - Appellant,
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, an agency of the
State of California,
Defendant - Appellee.
No. 14-15860
D.C. No. 1:10-cv-00491-JLT
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Jennifer L. Thurston, Magistrate Judge, Presiding
Argued and Submitted April 15, 2016
San Francisco, California
Before: WALLACE, SCHROEDER and KOZINSKI, Circuit Judges.
1. Nehara appealed from the order granting relief from judgment under
Federal Rule of Civil Procedure 60, but he failed to appeal from the evidentiary
order or from the final judgment. When “a party seeks to argue the merits of an
FILED
MAY 25 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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page 2
order that does not appear on the face of the notice of appeal,” we consider two
factors: “(1) whether the intent to appeal a specific judgment can be fairly inferred
and (2) whether the appellee was prejudiced by the mistake.” Le v. Astrue, 558
F.3d 1019, 1022–23 (9th Cir. 2009). In a Rule 28(j) letter filed after argument,
Appellee conceded that Nehara’s intent can be fairly inferred and that his mistake
caused no prejudice. We therefore “construe [Nehara’s] notice of appeal as
meeting the requirements” of the Federal Rules of Appellate Procedure despite its
“technical errors.” Id. at 1024–25.
2. When deposed, Nehara denied that he held any jobs after 2009.
Following the jury verdict in favor of Nehara, the executive director of a healthcare
facility in Canada, Karen Carnes, filed a declaration representing that Nehara
worked for that facility between 2011 and 2013. Given this new information,
Appellee moved for relief from judgment under Rule 60(b). Nehara didn’t contest
the truth of the Carnes declaration, but he argued that relief from judgment was
improper because the new information went only to damages and not to liability.
The magistrate judge didn’t abuse her discretion by granting the 60(b)
motion. Nehara’s lies regarding his past employment evince a scheme to defraud
the court and call the jury’s findings into serious doubt. It was entirely reasonable

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page 3
for the magistrate judge to conclude that the outcome of the trial would likely have
been different if the new information had been available to the jury. Thus, relief
from judgment was proper under Rule 60(b). See Coastal Transfer Co. v. Toyota
Motor Sales, U.S.A., Inc., 833 F.2d 208, 211 (9th Cir. 1987).
3. Nehara argues that the magistrate judge committed reversible error by
granting Appellee’s Rule 60(b) motion based on information submitted in response
to an improper subpoena. Appellee served a subpoena on the Canadian healthcare
facility well after the discovery cut-off date and without providing notice to
Nehara. Even assuming that the subpoena was procedurally improper, Appellee
has carried its burden of showing that the error was harmless. See Obrey v.
Johnson, 400 F.3d 691, 701 (9th Cir. 2005).
There is no doubt that Carnes’s information would have reached the district
court even if no subpoena were ever issued. Carnes contacted the district court
with information about Nehara’s Canadian employment on June 5, 2013. Carnes
emailed counsel for Appellee on that same day. The subpoena was not issued until
June 12, 2013. Moreover, we have been cited no Ninth Circuit authority indicating
that suppression is an available remedy for an improper subpoena issued in a civil
case.

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page 4
4. Nehara’s motion to strike portions of Appellee’s answering brief is
granted in part and denied in part. Footnote 2 is stricken because it refers without
citation to various disputed facts. See 9th Cir. R. 28–2.8. The final paragraph on
page 4 is permissible because it explains this case’s procedural posture.
AFFIRMED.

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