Roberta Brafman v. Nationwide Mutual Insurance Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTA BRAFMAN,
Plaintiff - Appellant,
v.
NATIONWIDE MUTUAL INSURANCE
COMPANY,
Defendant - Appellee.
No. 13-16470
D.C. No. 2:11-cv-01627-MCE-
GGH
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Submitted May 15, 2015 **
San Francisco, California
Before: N.R. SMITH and OWENS, Circuit Judges and COLLINS, *** Chief
District Judge.
FILED
JUN 16 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).
*** The Honorable Raner C. Collins, Chief District Judge for the U.S. District
Court for the District of Arizona, sitting by designation.

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The underlying facts of this case involve an insurance coverage dispute
between Plaintiff-Appellant Roberta Brafman and Defendant-Appellee Nationwide
Mutual Insurance Company. The focus on appeal is the district court’s dismissal of
Brafman’s suit after her attorney, Robert Koehler, failed to timely comply with
court orders due to serious illness. Brafman appeals from the district court’s order
denying her Motion to Vacate Judgment pursuant to Federal Rule of Civil
Procedure 60(b)(1), (6) as untimely. For the reasons stated below, we affirm.
“Denials of motions to vacate the judgment under Rule 60(b) are appealable
as final orders under 28 U.S.C. § 1291.” Jeff D. v. Kempthorne, 365 F.3d 844, 850
(9th Cir. 2004).
We review for abuse of discretion a district court’s decision to deny a Rule
60(b) motion. Lal v. California, 610 F.3d 518, 523 (9th Cir. 2010) (citing Cal.
Dep’t of Soc. Servs. v. Leavitt, 523 F.3d 1025, 1031 (9th Cir. 2008)). “A district
court abuses its discretion if it does not apply the correct law or if it rests its
decision on a clearly erroneous finding of material fact.” Casey v. Albertson’s Inc.,
362 F.3d 1254, 1257 (9th Cir. 2004) (citing Bateman v. United States Postal Serv.,
231 F.3d 1220, 1223 (9th Cir. 2000)). The district court did not make clearly
erroneous findings of fact in ruling that Brafman’s Rule 60(b)(1), (6) motion was
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untimely. The district court considered the correct legal framework and did not rely
on clearly erroneous facts.
All motions brought under Rule 60(b)(1) must be brought within a
"reasonable time," and, in any event, not longer than one year after the judgment
was entered. Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981). As a general
rule "parties are bound by the actions of their lawyers, and alleged attorney
malpractice does not usually provide a basis to set aside a judgment pursuant to
Rule 60(b)(1)." Casey, 362 F.3d at 1260; Pioneer Inv. Servs. Co. v. Brunswick
Assoc. Ltd. Partnership, 507 U.S. 380, 396 (1993) (holding that clients must be
held accountable for the acts and omissions of their attorneys).
In the present case, the district court did not abuse its discretion by
concluding that Brafman’s Rule 60(b)(1) motion was not filed within a reasonable
time. The district court entered judgment dismissing Brafman’s case on April 23,
2012. Brafman filed her Rule 60(b)(1) motion on April 1, 2013, within the year
specified in Rule 60(c)(1). However, the district court concluded that the motion
had not within a reasonable time given the specific facts in this case. In finding
Brafman’s motion untimely, the district court below properly considered that: (1)
both Brafman and Koehler were aware of Koehler’s illness; (2) Koehler kept
Brafman informed of the status of her case; (3) Koehler realized that neither he nor
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his law clerk could perform the work required in this case; and (4) Brafman took
no action to find another attorney despite suspecting Koehler was not as capable as
he presented himself. The district court also emphasized that it (A) allowed
Brafman to file an opposition to Nationwide’s Second Motion to Dismiss even
though she had missed the filing deadline, and (B) granted Brafman multiple
continuances before ultimately dismissing the case. Brafman has provided no
authority to suggest that, given the specific facts of this case, the district court
abused its discretion. Cf. Meadows v. Dominican Republic, 817 F.2d 517, 520-21
(9th Cir. 1987) (“[A Rule 60(b)(1)] motion may be denied, although it was filed
within the one year period, if the district court finds that the defendant was guilty
of laches or unreasonable delay.”).
While there are not set time periods applicable to a Rule 60(b)(6) motion,
the motion must also be brought within a reasonable time. See Fed. R. Civ. P.
60(c)(1). For the same reasons outlined above, the district court did not abuse its
discretion by concluding that Brafman’s Rule 60(b)(6) motion was not brought
within a reasonable time.
The parties shall bear their own respective costs on appeal.
AFFIRMED.
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