Fred Kenneth Macdonald v. United States of America;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRED KENNETH MACDONALD,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA; et al.,
Defendants-Appellees.
No. 15-56429
D.C. No.
3:11-cv-01088-BEN-KSC
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted February 13, 2017**
Pasadena, California
Before: D.W. NELSON, TALLMAN, and N.R. SMITH, Circuit Judges.
Appellant Fred Kenneth MacDonald (“MacDonald”) appeals the district
court’s denial of his Federal Rule of Civil Procedure 60(b) motion to reopen his
case, vacate his voluntary dismissal without prejudice, and enter a new dismissal
FILED
FEB 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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with prejudice. A district court’s denial of a Rule 60(b) motion is a final,
appealable order. Griffin v. Gomez, 741 F.3d 10, 25 (9th Cir. 2014). We have
jurisdiction under 28 U.S.C. § 1291. We review the district court’s denial of a
Rule 60(b) motion for an abuse of discretion, Lemoge v. United States, 587 F.3d
1188, 1191–92 (9th Cir. 2009), and we affirm.
The district court did not abuse its discretion in denying MacDonald’s Rule
60(b) motion because MacDonald failed to establish grounds for relief. See
Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1100 (9th Cir. 2006) (allowing
reversal of a Rule 60(b) order only if the district court “does not apply the correct
law, rests its decision on a clearly erroneous finding of a material fact, or applies
the correct legal standard in a manner that results in an abuse of discretion.”
(quoting Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1043 (9th Cir.
1992))).
We do not reach MacDonald’s arguments concerning the merits of the
underlying case because “[a]n appeal from a denial of a Rule 60(b) motion brings
up only the denial of the motion for review, not the merits of the underlying
judgment.” Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989); see also Floyd v.
Laws, 929 F.2d 1390, 1400 (9th Cir. 1991).
The parties shall bear their own costs on appeal.
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AFFIRMED.
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