West American Insurance Company, an Ohio corporation v. JUSTIN L. HERNANDEZ and DANIELA A. HERNANDEZ

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WEST AMERICAN INSURANCE
COMPANY, an Ohio corporation,
Plaintiff - Appellant,
v.
JUSTIN L. HERNANDEZ and DANIELA
A. HERNANDEZ,
Defendants - Appellees.
No. 11-35278
D.C. No. 6:07-cv-01447-AA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Submitted May 10, 2012**
Portland, Oregon
Before: KOZINSKI, Chief Judge, TALLMAN and IKUTA, Circuit Judges.
FILED
MAY 14 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

2
The district court did not abuse its discretion in denying West American
Insurance Company’s motions under Rules 60(b), 62, and 67 of the Federal Rules
of Civil Procedure. West American’s motion to resolve a dispute regarding its
entitlement to the $170,000 judgment under the mortgage clause sought relief that
was unavailable under Rule 60(b)(6) because it rested on a claim that was not
litigated as part of the underlying judgment. See Delay v. Gordon, 475 F.3d 1039,
1044–46 (9th Cir. 2007); see also United States v. $119,980, 680 F.2d 106, 107–08
(11th Cir. 1982). West American did not appeal the district court’s prior denials of
its motion to adjudicate that dispute, and Rule 60(b) is not available for
adjudication of claims not adjudicated in the underlying order or judgment. See
Delay, 475 F.3d at 1046–47. Nor was relief available under Rule 60(b)(5): The
judgment had not “been satisfied, released or discharged,” and circumstances had
not changed since the judgment was entered such that “applying it prospectively
[was] no longer equitable.” Fed. R. Civ. P. 60(b)(5).
West American’s motions under Rules 62 and 67 became moot when the
district court decided its Rule 60(b) motion.
AFFIRMED.

-- 2 of 2 --