Behrooz Mohazzabi v. Wells Fargo Bank, N.a.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BEHROOZ MOHAZZABI,
Plaintiff-Appellant,
v.
WELLS FARGO BANK, N.A.,
Defendant-Appellee.
No. 22-15360
D.C. No. 4:21-cv-06751-JST
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Submitted June 26, 2023**
Before: CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges.
Behrooz Mohazzabi appeals pro se from the district court’s order dismissing
his action alleging fraud in connection with an arbitration proceeding. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
The district did not abuse its discretion in construing Mohazzabi’s complaint
* 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).
FILED
JUL 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 22-15360
as a motion under Rules 60(b)(2) and (3) to vacate the 2019 order compelling
arbitration in a different case and denying it because it was untimely and because
allegations of fraud during the arbitration proceeding did not provide a justification
for vacating the order compelling arbitration. See Fed. R. Civ. P. 60(c)(1)
(requiring a motion under Rules 60(b)(2) or (3) to be made no more than a year
after the entry of the judgment); Washington v. Ryan, 833 F.3d 1087, 1091 (9th
Cir. 2016) (en banc) (setting forth standard of review).
Even if Mohazzabi’s complaint were construed as an independent action
seeking to vacate the arbitration award, dismissal was proper because the action
was untimely and Mohazzabi failed to allege facts sufficient to show fraud that
would justify vacating the award. See 9 U.S.C. § 12 (explaining that notice of a
motion to vacate an arbitration award must be “served upon the adverse party or
his attorney within three months after the award is filed or delivered”); Dogherra
v. Safeway Stores, Inc., 679 F.2d 1293, 1297 (9th Cir. 1982) (explaining that
“courts must be slow to vacate an arbitral award on the ground of fraud,” and the
alleged fraud must not have been discoverable upon the exercise of due diligence
and must be materially related to an issue in the arbitration).
The district court properly dismissed Mohazzabi’s action without leave to
amend because amendment would be futile. See Cervantes v. Countrywide Home
Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review

-- 2 of 3 --

3 22-15360
and explaining that dismissal without leave to amend is proper when amendment
would be futile).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

-- 3 of 3 --