Influence Entertainment v. 3765 HOLDING, LLC, DBA Empire Ballroom; EDWARD J. RUDIGER, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INFLUENCE ENTERTAINMENT,
Plaintiff-Appellant,
v.
3765 HOLDING, LLC, DBA Empire
Ballroom; EDWARD J. RUDIGER, Jr.,
Defendants-Appellees,
and
GENE T. LOPINTO; et al.,
Defendants.
No. 21-16372
D.C. No.
2:07-cv-00462-JCM-LRL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted July 28, 2022**
San Francisco, California
Before: M. MURPHY,*** GRABER, and OWENS, Circuit Judges.
* 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 Michael R. Murphy, United States Circuit Judge for
FILED
NOV 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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In April 2009, the district court granted Influence Entertainment default
judgment against 3765 Holding and Edward Rudiger (“Defendants”). In July
2021, the district court granted Defendants’ motion to set aside the default
judgment on the basis that the renewal affidavit Influence Entertainment filed in
December 2014 was not timely. Influence Entertainment appeals the district
court’s decision to set aside the default judgment rather than simply declaring it
lapsed or expired. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and
remand. We also grant Influence Entertainment’s motions to supplement the
record on appeal and to take judicial notice of various court filings.
Although Influence Entertainment did not argue below that the default
judgment should be declared expired rather than set aside, this court has discretion
to consider issues not presented to the district court “under three circumstances: (1)
in the exceptional case in which review is necessary to prevent a miscarriage of
justice or to preserve the integrity of the judicial process, (2) when a new issue
arises while appeal is pending because of a change in the law, and, (3) when the
issue presented is purely one of law and either does not depend on the factual
record developed below, or the pertinent record has been fully developed.” Ruiz v.
Affinity Logistics Corp., 667 F.3d 1318, 1322 (9th Cir. 2012) (internal quotations
omitted). Influence Entertainment persuasively argues that the first and third
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

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exceptions apply here, and Defendants raise no reason why these exceptions would
not apply. We exercise our discretion to consider this issue on appeal.
A default judgment may be set aside only if the defendant demonstrates its
entitlement to relief under Fed. R. Civ. P. 60(b). See Fed. R. Civ. P. 55(c); FDIC
v. Aaronian, 93 F.3d 636, 639 (9th Cir. 1996); TCI Grp. Life Ins. Plan v.
Knoebber, 244 F.3d 691, 695–96 (9th Cir. 2001), overruled on other grounds by
Egelhoff v. Egelhoff ex. rel. Breiner, 532 U.S. 141 (2001). Defendants argue they
are entitled to relief under Fed. R. Civ. P. 60(b)(6), which permits a court to
“relieve a party. . . from a final judgment” for “any other reason that justifies
relief.” This court has held, however, that subsection (b)(6) “is to be utilized only
where extraordinary circumstances prevented a party from taking timely action to
prevent or correct an erroneous judgment.” United States v. Alpine Land &
Reservoir, Co., 984 F.2d 1047, 1049 (9th Cir. 1993). Defendants have utterly
failed to demonstrate that this standard is satisfied in this case.
Moreover, contrary to Defendants’ arguments, the district court’s decision to
set aside the judgment cannot be sustained on the basis of the unpublished decision
in Romano v. LaVecchia (In re Romano), 371 F. App’x 729, 730 (9th Cir. 2010)
(unpublished). Defendants misinterpret Romano, which involved the vacatur of a
renewal affidavit but did not implicate the underlying judgment itself. See id.; see
also Romano v. LaVecchia (In re Romano), BAP Nos. NV-08-1139, 08-1140, &

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08-1142, 2008 Bankr. LEXIS 4729 at *13 (B.A.P. 9th Cir. Oct. 24, 2008).
Additionally, Romano is an unpublished disposition with no precedential value; to
the extent it might be read to conflict with the Federal Rules, we would not follow
it. See Grimm v. City of Portland, 971 F.3d 1060, 1067 (9th Cir. 2020).
Because Defendants did not demonstrate an entitlement to relief from
judgment under Rule 60(b), the district court erred in setting aside the default
judgment rather than simply declaring it lapsed or expired. We reverse the district
court’s decision on this basis and do not consider Influence Entertainment’s other
arguments for reversal.
Influence Entertainment’s motion to take judicial notice, Docket No. 12, and
motion to supplement the record, Docket No. 14, are GRANTED.
REVERSED and REMANDED.

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