Phu Luc Nay v. JEH JOHNSON, Secretary of Homeland Security;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHU LUC NAY,
Petitioner - Appellant,
v.
JEH JOHNSON, Secretary of Homeland
Security; et al.,
Respondents - Appellees.
No. 14-55701
D.C. No. 2:13-cv-00195-RGK-R
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding.
Submitted May 13, 2015**
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
Phu Luc Nay appeals pro se from the district court’s order denying his
motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(2).
We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
FILED
MAY 20 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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discretion the denial of a motion for relief from judgement. Casey v. Albertson’s
Inc., 362 F.3d 1254, 1257 (9th Cir. 2004). We affirm.
The district court did not abuse its discretion in denying Nay’s motion for
relief from judgment where Nay did not show that the evidence he sought to
introduce was new evidence that could not have been discovered through due
diligence within 28 days of the judgment. See Fed. R. Civ. P. 60(b)(2); Fed. R.
Civ. P. 59(b); Feature Realty, Inc., v. City of Spokane, 331 F.3d 1082, 1093 (9th
Cir. 2003) (setting forth the three part test for relief from judgment under Rule
60(b)(2)).
In light of this disposition, we do not reach Nay’s contention that the district
court abused its discretion in determining that the purported new evidence would
not have changed its prior decision. See Matus-Leva v. United States, 287 F.3d
758, 760 (9th Cir. 2002) (where the requirements for relief are conjunctive, failure
to meet any one of them is fatal).
AFFIRMED.
14-55701 2

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