Kevin Perry v. San Diego County

Court of Appeals for the Ninth Circuit · 14-56618, 14-56707 · 2016-11-07 · Unpublished

Kevin L. PERRY, Plaintiff-Appellant, v. SAN DIEGO COUNTY, a Public Entity, Defendant-Appellee; Kevin L. Perry, Plaintiff-Appellant, v. Veolia Transport, DBA Veolia Transportation Services, Inc., a Maryland Corporation; Et Al., Defendants-Appellees

Area: other
Panel: Edward Leavy (author), Susan Graber, Morgan Christen

Analysis

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Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 7 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KEVIN L. PERRY, No. 14-56618 Plaintiff-Appellant, D.C. No. 3:14-mc-00381-JLS v. MEMORANDUM* SAN DIEGO COUNTY, a public entity, Defendant-Appellee.

KEVIN L. PERRY, No. 14-56707 Plaintiff-Appellant, D.C. No. 3:11-cv-00176-LAB- RBB v. VEOLIA TRANSPORT, DBA Veolia Transportation Services, Inc., A Maryland Corporation; et al., Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding Larry A. Burns, District Judge, Presiding * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted October 25, 2016** Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.

In these consolidated appeals, Kevin L. Perry appeals pro se from the district court’s order dismissing his action for failure to comply with a vexatious litigant order (No. 14-56618), and the district court’s order denying his Federal Rule of Civil Procedure 60(b) motion for relief from judgment (No. 14-56707). We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion both the district court’s denial of leave to file a complaint pursuant to a vexatious litigant order, In re Fillbach, 223 F.3d 1089, 1090-91 (9th Cir. 2000), and the district court’s denial of a Rule 60(b) motion, Harman v. Harper, 7 F.3d 1455, 1458 (9th Cir. 1993). We affirm.

As to No. 14-56618, the district court did not abuse its discretion in denying Perry’s motion for leave to file a complaint because Perry failed to comply with the vexatious litigant order entered against him. See Perry v. Veolia Transp., et al., No. 11-CV–176–LAB–RBB, 2011 WL 4566449 at *9-12 (S.D. Cal. Sept. 30, 2011). Perry failed to submit a copy of the vexatious litigant order with his motion as required and falsely certified that his proposed complaint raised new issues not previously raised in a prior state or federal action.

** The panel unanimously concludes these cases are suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 14-56618 As to No. 14-56707, the district court did not abuse its discretion in denying Perry’s motion for relief from judgment where Perry never appealed from the judgment, presented no reason for the nearly three-year delay in filing his motion, and did not establish any basis for relief. See Fed. R. Civ. P. 60(b)(5)-(6); Fed. R.

Civ. P. 60(c)(1) (Rule 60(b)(5) and 60(b)(6) motions must be filed “within a reasonable time”); see also In re Pac. Far East Lines, Inc., 889 F.2d 242, 249 (9th Cir. 1989) (“What constitutes a reasonable time depends on the facts of each case.”).

14-56618: AFFIRMED.

14-56707: AFFIRMED.

3 14-56618