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Shaughnessy v. United States District Court

*fn* submitted: May 12, 1993.

PATRICK SHAUGHNESSY, PLAINTIFF-APPELLANT,
v.
UNITED STATES DISTRICT COURT - SOUTHERN DISTRICT OF CALIFORNIA; NATIONAL CITY POLICE DEPARTMENT; BOARD OF SUPERVISORS OF COUNTY OF SAN DIEGO; MOYNIHAN TOWING COMPANY, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of California. D.C. No. CV-92-0157-K. Judith N. Keep, Chief Judge, Presiding

Before: Hug, Wiggins, and Thompson, Circuit Judges.

MEMORANDUM

Patrick Shaughnessy appeals pro se the district court's order dismissing his motion pursuant to Fed. R. Civ. P. 60(b)(6). We review the denial of a Rule 60(b) motion for an abuse of discretion. Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Shaughnessy's action was dismissed for failure to prosecute on December 11, 1989. Over two years later, he filed his motion for relief under Fed. R. Civ. P. 60(b)(6). The district court dismissed the motion as untimely. Shaughnessy contends that the district court erred in dismissing his Rule 60(b)(6) motion. This contention lacks merit.

"An 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." Id. at 1400. A motion under Rule 60(b)(6) may be made within a reasonable time after the entry of judgment for "any other reason justifying relief from the operation of judgment." Fed. R. Civ. P. 60(b)(6); United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (1993). Rule 60(b)(6) is to be used sparingly as an equitable remedy to prevent manifest inJustice. Alpine, 984 F.2d at 1049. Relief under Rule 60(b)(6) requires a finding of "extraordinary circumstances [which] prevented a party from taking timely action to correct an erroneous judgment." Id.

Because Shaughnessy's Rule 60(b)(6) motion was filed over two years after the district court dismissed his action, and because he has not shown the "extraordinary circumstances" required to justify relief under Rule 60(b)(6), the district court did not abuse its discretion in dismissing Shaughnessy's Rule 60(b)(6) motion. See id. Further, we do not address the issues Shaughnessy raises with regard to the underlying dismissal, because his appeal from the denial of his Rule 60(b) motion does not bring up the merits of the underlying judgment for review. See Floyd, 929 F.2d at 1400.

Shaughnessy also contends that the district court improperly denied his request for appointment of counsel. We disagree. Given the lack of exceptional circumstances or likelihood of success on the merits, the district court did not abuse its discretion by denying Shaughnessy's request for appointment of counsel. See Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990) (appointment of counsel under 28 U.S.C. § 1915(d) is left to the sound discretion of the trial court and is granted only in "exceptional circumstances" where the legal issues are complex).

AFFIRMED.

Disposition

AFFIRME ...


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