and Submitted June 10, 2019 Anchorage, Alaska
from the United States District Court No. CV 14-1240 ODW for
the Central District of California Otis D. Wright II,
District Judge, Presiding
V. Smith (argued), Zuckerman Spaeder LLP, Baltimore,
Maryland; Taras Kick and Robert J. Dart, The Kick Law Firm
APC, Los Angeles, California; for Plaintiffs-Appellants.
Michael J. Gleason (argued), Hahn Loeser & Parks LLP, San
San Diego, California, for Defendant-Appellee.
Before: A. Wallace Tashima, William A. Fletcher, and Marsha
S. Berzon, Circuit Judges.
for Relief from Judgment
panel reversed the district court's order denying
plaintiffs' Fed.R.Civ.P. 60(b)(6) motion for relief from
judgment in an action under the Real Estate Settlement
sought relief from judgment based on an intervening change in
the law in Microsoft Corp. v. Baker, 137 S.Ct. 1702
(2017) (holding that plaintiffs in putative class actions
cannot transform a tentative interlocutory order into a final
appealable judgment simply by dismissing their claims with
prejudice). The panel addressed the analysis that courts
should employ to guide their discretion when evaluating the
merits of a Rule 60(b)(6) motion on the ground of an
intervening change in the law in a non-habeas corpus case.
The panel held that many of the factors set out in Phelps
v. Alameida, 569 F.3d 1120 (9th Cir. 2009), a habeas
case, are relevant, but courts must consider all of the
relevant circumstances surrounding a specific motion.
panel examined the district court's analysis of the six
Phelps factors, including the nature of the change
in the law, plaintiffs' diligence in pursuing relief, the
parties' reliance interest in the finality of the case,
the delay between the judgment and the Rule 60(b) motion, the
relationship between the original judgment and the change in
the law, and comity concerns. The panel also examined
additional considerations, such as the importance of heeding
the intent of the rulings of the federal appellate courts,
how best to stay true to the Supreme Court's reasoning in
Microsoft, and the negotiated nature of the
voluntary dismissal in this case. The panel concluded that
the district court's denial of plaintiffs' Rule
60(b)(6) motion was an abuse of discretion because it rested
upon an erroneous view of the law as to several significant
factors, and granting relief was appropriate. The panel
reversed and remanded with directions to grant the Rule
60(b)(6) motion and for further proceedings.
TASHIMA, Circuit Judge
Rule of Civil Procedure 60(b)(6) is a grand reservoir of
equitable power that allows courts to grant relief from a
final judgment for "any" reason that
"justifies relief." Fed.R.Civ.P. 60(b)(6). In
Phelps v. Alameida, 569 F.3d 1120, 1135-40 (9th Cir.
2009), we set out the analysis that courts should employ to
guide their discretion when evaluating the merits of a Rule
60(b)(6) motion that seeks relief from the dismissal of a
habeas corpus petition on the ground of an intervening change
in the law. However, we explicitly left open the question of
whether the same Rule 60(b)(6) factors we identified in
Phelps are also applicable beyond the habeas corpus
context. See id. at 1135 n.19. Confronted with the
appeal of a district court's denial of a Rule 60(b)(6)
motion that was also predicated on an intervening change in
the law, but in a non-habeas case that entails entirely
different circumstances than did Phelps, we now
begin to answer that question. While we conclude that many of
the Phelps factors are relevant to the Rule 60(b)(6)
analysis in the present context, we reemphasize that courts
must consider all of the relevant circumstances surrounding
the specific motion before the court in order to ensure that
justice be done in light of all the facts. See id.
September 9, 2013, Plaintiffs-Appellants Melissia Henson and
Keith Turner (collectively "Plaintiffs"), two
individuals who participated in separate real estate
transactions, filed this putative class action lawsuit
against Defendant-Appellee Fidelity National Financial, Inc.
("Fidelity"). Plaintiffs claimed that
Fidelity's practice of receiving payments from three
overnight delivery vendors, in exchange for referring
document delivery business to those vendors in connection
with the settlement of federally related mortgage loans,
violated §§ 8(a) and 8(b) of the Real Estate
Settlement Procedures Act ("RESPA"), Pub. L. No.
93-533, 88 Stat. 1724, 12 U.S.C. § 2607.
moved to dismiss the complaint, and the district court
granted the motion as to all claims except for Turner's
claim under RESPA § 8(a). The district court dismissed
all of Henson's claims on statute of limitations grounds,
and also dismissed with prejudice both Henson's and
Turner's claims under RESPA § 8(b) for failure to
state a claim. After filing an answer, Fidelity moved for
judgment on the pleadings with respect to Turner's
remaining claim under RESPA § 8(a), but the district
court denied that motion.
subsequently moved for class certification. A week later,
Turner moved in the alternative to continue the hearing on
class certification in order to allow discovery on class
certification issues. The district court denied both the
discovery and class certification motions, finding that class
member-specific questions would predominate over any
then entered into a detailed, negotiated stipulation of
dismissal with Fidelity. Relying on Ninth Circuit precedent
that permitted a plaintiff to obtain appellate review of
certain interlocutory orders, including an order denying
class certification, by dismissing any active claims with
prejudice, Plaintiffs agreed to voluntarily dismiss the case
with prejudice so that they could appeal both the district
court's denial of class certification and the partial
grant of the motion to dismiss. See Omstead v. Dell,
Inc., 594 F.3d 1081, 1085 (9th Cir. 2010) ("[A]
plaintiff that deems an interlocutory ruling to be so
prejudicial as to deserve immediate review . . . has the
alternative of dismissing the complaint voluntarily with
prejudice.") (citation omitted); see also Berger v.
Home Depot USA, Inc., 741 F.3d 1061, 1065 (9th Cir.
2014) ("[A] dismissal of an action with prejudice, even
when such dismissal is the product of a stipulation, is a
sufficiently adverse-and thus appealable-final
decision."). The stipulation provided:
Plaintiffs Keith Turner and Melissia Henson and Defendant
Fidelity National Financial, Inc., through their undersigned
counsel, hereby stipulate to request dismissal of the
above-captioned case with prejudice pursuant to Federal Rule
of Civil Procedure 41(a)(2), and further stipulate that:
The parties understand that plaintiffs Turner and Henson will
file an appeal to the dismissal in order to appeal certain of
the Court's orders, including its order denying class
certification and its order granting (in part)
defendant's motion to dismiss. See Omstead v. Dell,
Inc., 594 F.3d 1081, 1085 (9th Cir. 2010). If the orders
appealed are affirmed, plaintiffs will take nothing by way of
their complaint. By stipulating to this dismissal, [Fidelity]
does not agree that such a dismissal establishes appellate
jurisdiction and does not waive its ability to challenge
The parties stipulate that by Plaintiffs voluntarily
dismissing their claims with prejudice, the Court's April
29, 2014 order on Defendant's Motion for Judgment on the
Pleadings is not a final judgment and shall not provide a
basis for collateral estoppel against Defendant in subsequent
Plaintiffs agree to reimburse [Fidelity] $837.96 for certain
costs that it has incurred in this action through the date of
the filing of this stipulation . . . .
It is further agreed that if Plaintiffs or Plaintiffs'
counsel should re-file the claims at issue in this lawsuit or
file a different lawsuit based on the same claims and conduct
on behalf of a different Plaintiff(s), any such claims will
be filed in the District Court for the Central District of
district court entered the parties' proposed order and
dismissed the complaint with prejudice on the terms provided
in the stipulation. Henson and Turner then timely filed
separate notices of appeal from the final dismissal order.
Both notices of appeal specifically identified the order
granting in part Fidelity's motion to dismiss (as to
Henson's claims and the RESPA § 8(b) claims), and
the order denying class certification, as orders included in
the final judgment to be reviewed on appeal.
Henson's and Turner's appeals were fully briefed, but
before they were calendared for oral argument, the cases were
stayed pending the United States Supreme Court's decision
in Microsoft Corp. v. Baker, because that case
appeared poised to address some of the appellate jurisdiction
questions raised by Fidelity in Henson's and Turner's
appeals. In Microsoft, the district court had
similarly granted a stipulated motion to dismiss with
prejudice. The parties had entered into the stipulation so
that the plaintiffs could seek immediate appeal of the
district court's earlier order striking consumers'
class allegations. See Microsoft Corp. v. Baker, 137
S.Ct. 1702, 1706-07, 1711-12 (2017). Under the stipulation,
the plaintiffs had "reserved the right to revive their
claims should the Court of Appeals reverse the District
Court's certification denial." Id. at 1707.
On appeal, however, Microsoft had challenged appellate
jurisdiction, arguing that the voluntary dismissal could not
support appellate review of the district court's
interlocutory order striking class allegations. Id.
at 1711. The Ninth Circuit rejected Microsoft's argument,
holding that it had jurisdiction to entertain the appeal
under 28 U.S.C. § 1291. Id. at 1711-12.
12, 2017, nearly three years after Plaintiffs had filed their
stipulated voluntary dismissal, the Supreme Court issued its
decision in Microsoft. The Court held that
"[p]laintiffs in putative class actions cannot transform
a tentative interlocutory order into a final judgment within
the meaning of § 1291 simply by dismissing their claims
with prejudice-subject, no less, to the right to
'revive' those claims if the denial of class
certification is reversed on appeal." Id. at
1715 (citations omitted). The Court explained that the tactic
of using a stipulated voluntary dismissal to seek immediate
review of an order denying class certification
"undermine[s] § 1291's firm finality
principle" and subverts Federal Rule of Civil Procedure
23(f), which gives appellate courts discretion to choose
whether to permit immediate appeals of interlocutory class
certification orders. See id. at 1707, 1712-15. In
so holding, the Supreme Court reversed the Ninth
Circuit's rule-on which Henson and Turner had relied-that
a stipulated voluntary dismissal of a class action was a
sufficiently adverse final order, as long as the individual
plaintiffs' cases had not settled, to give rise to
appellate jurisdiction to review a district court's
denial of class certification. See Baker v. Microsoft
Corp., 797 F.3d 607, 612 (9th Cir. 2015); see also
Berger, 741 F.3d at 1065.
light of Microsoft, Fidelity moved to dismiss both
Henson's and Turner's appeals. Fidelity argued that
the Supreme Court's rule in Microsoft applied
directly and deprived the Ninth Circuit of jurisdiction over
Turner's appeal from the denial of class certification.
And Fidelity suggested that the Ninth Circuit also lacked
jurisdiction to hear Henson's appeal from the district
court's dismissal order because the Supreme Court's
rule in Microsoft applied beyond the class
certification context and meant that a voluntary dismissal
could never constitute a final order under § 1291.
response, Plaintiffs argued that their case was factually
distinguishable from Microsoft because, before the
stipulated voluntary dismissal of the single remaining claim,
the district court had already involuntarily dismissed all of
Henson's claims and one of Turner's claims.
Plaintiffs maintained that the Ninth Circuit had jurisdiction
over their appeals because Microsoft did not
overrule cases from "[e]very circuit permit[ting] a
plaintiff, in at least some circumstances, voluntarily to
dismiss remaining claims or remaining parties from an action
to conclude the whole case in the district court and ready it
Circuit motions panel subsequently entered identical orders
in Henson's and Turner's appeals, denying
Fidelity's motions to dismiss and remanding to the
district court. The orders stated:
Appellee's motion to dismiss this appeal . . . is denied.
In light of the Supreme Court of the United States'
decision in Microsoft Corp. v. Baker, the court sua
sponte remands this case to allow the parties to seek
appropriate relief in the district court in the first
instance. See Microsoft Corp. v. Baker, 137 S.Ct.
1702, 1715 (2017).
remand, Fidelity refused to stipulate that the case should
proceed before the district court on Turner's RESPA
§ 8(a) claim, which had survived Fidelity's motion
to dismiss and motion for judgment on the pleadings, but
which had been voluntarily dismissed pursuant to the
stipulation. As a result, Plaintiffs moved to vacate the
prior dismissal pursuant to Federal Rule of Civil Procedure
their Rule 60(b) motion, Plaintiffs argued that their
circumstances, including Microsoft's intervening
change in the law, entitled them to relief from judgment
under the factors set out in Phelps, 569 F.3d at
1135-40, which addressed Rule 60(b)(6) relief in light of an
intervening change in the law. In addition, Henson argued
that even if the district court declined to vacate the
dismissal order and revive the entire case, it should
nonetheless grant her more limited relief by entering a new
final judgment from which she could appeal the court's
earlier involuntary dismissal of her claims, because ...