Summary
holding that a Rule 60(b) motion can be used to challenge an underlying judgment because of an error of law
Summary of this case from Robertson v. WalkerOpinion
No. 97-15751
Argued and Submitted March 10, 1998 — San Francisco, California
Filed April 6, 1998
Peter L. Flangas, Las Vegas, Nevada, for the plaintiff-appellant.
Mark J. Ricciardi, Ricciardi Associates, Las Vegas, Nevada, for the defendant-appellee.
Appeal from the United States District Court for the District of Nevada Phillip M. Pro, District Judge, Presiding.
D.C. No. CV-00710-PMP(LRL)
ORDER
Plaintiff appeals the denial of a motion to set aside judgment pursuant to Fed.R.Civ.P. 60(b). The district court granted the defendant's motion for summary judgement and entered judgement for the defendant solely pursuant to a local rule that provided that failure to respond to a motion constitutes consent. Granting the motion without determining whether the defendant's moving papers, including "the papers and pleadings on file herein," showed that no genuine issues of material fact exist was error under Henry v. Gill Indus., Inc., 983 F.2d 943 (9th Cir. 1993). See Marshall v. Gates, 44 F.3d 722 (9th Cir. 1995) (following Henry); Cristobal v. Siegel, 26 F.3d 1488 (9th Cir. 1994) (same). The district court's subsequent denial of the Rule 60(b) motion was an abuse of discretion because the underlying decision was based on an error of law. See Yniques v. Cabral, 985 F.2d 1031, 1034 (9th Cir. 1993) (holding that underlying judgement based on error of law is "mistake" under Fed.R.Civ.P. 60(b) that requires reversal). We therefore reverse the district's denial of the motion to set aside the judgement and remand to the district court to determine the merits of the summary judgment motion.