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Maraziti v. Thorpe

filed: April 11, 1995.

RICHARD J. MARAZITI, PLAINTIFF-APPELLANT,
v.
ROBERT T. THORPE; DAVID SIMMONS; GENE CARLSON; JAMES THIBAULT; UNITED STATES OF AMERICA; MARK VAN EPPS; JANICE L. PLATT; FIRST INTERSTATE BANK OF CALIFORNIA; T.P. FERRAND; CITY OF SAN DIEGO; OSCAR M. VASQUEZ; MICHAEL NICHOCHEA, DEFENDANTS-APPELLEES.



Appeal from the United States District Court For the Southern District of California. D.C. No. CV-87-01647-JNK. Judith N. Keep, Chief Judge, Presiding.

Before: James R. Browning, Dorothy W. Nelson and Michael Daly Hawkins, Circuit Judges. Opinion by Judge Hawkins.

Author: Hawkins

HAWKINS, Circuit Judge:

FACTS*fn1

Richard J. Maraziti and Robert T. Thorpe*fn2, both veterinarians, were friends and business associates. On December 17, 1986, as part of a business transaction, Thorpe required Maraziti to deliver $500,000 in cashier's checks, payable to Thorpe, to First Interstate Bank where they could be "verified." However, unbeknownst to Maraziti, Thorpe had arranged for IRS agents to be at the bank, where the checks were cashed and $353,327.76 was seized to pay Thorpe's unpaid taxes. The balance of the money was retained by Thorpe, who, along with the IRS agents, exited the bank by a back door while Maraziti was left waiting in the lobby.

On April 3, 1989, Maraziti asserted a wrongful levy claim against the United States for the seizure of the $353,000. After an evidentiary hearing, the district court found it lacked subject matter jurisdiction because Maraziti's claim was filed well beyond the nine-month limitations period set forth in 26 U.S.C. § 6532(c)(1). Additionally, the court found that Maraziti did not file an administrative request for return of property, pursuant to section 6532(c)(2), so the limitations period was not extended.*fn3 The district court, therefore, dismissed the United States as a defendant in Maraziti's suit.

In response to Maraziti's claim and a separate suit by Thorpe seeking a refund of most of the amount seized to satisfy his tax liability, the United States interpled the $353,000. Ruling on the interpleader, the court determined that, as between the two claimants, Maraziti was entitled to the money. The United States paid Maraziti $353,327.76 but did not pay any interest on that amount.

In an attempt to obtain interest for the period that the government held his money, Maraziti filed a motion pursuant to Fed. R. Civ. P. 60(b)(5) and (6) to vacate the judgment dismissing the United States. In his motion, Maraziti contended that, until Thorpe's tax court proceeding, the government had consistently taken the position that the money seized rightfully belonged to Thorpe. However, in its case against Thorpe, the IRS maintained that it was Maraziti's money and Thorpe had converted it to pay his taxes. Maraziti argued that this change in the government's position constituted an extraordinary circumstance that would make prospective application of the dismissal order inequitable. The district court disagreed and denied the motion. Maraziti appealed.

Although the facts of this case make for interesting reading, the sole issue we consider on appeal is whether the district court abused its discretion by denying Maraziti's Rule 60(b) motion. We conclude that it did not, and therefore we affirm.

STANDARD OF REVIEW

This Court reviews a denial of a Rule 60(b) motion for relief from judgment under an abuse of discretion standard. Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 263 n.7, 54 L. Ed. 2d 521, 98 S. Ct. 556 (1978); In re Roxford Foods, Inc., 12 F.3d 875, 879 (9th Cir. 1993); Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991); Transgo, Inc. v. Ajac Transmission Parts Corp., 911 F.2d 363, 365 (9th Cir. 1990). Additionally, an appeal of a denial of a Rule 60(b) motion brings up for review only the denial of the motion, unless it is filed within ten days of the entry of the judgment. Fed. R. App. P. 4(a)(4)(F). See also Browder, 434 U.S. at 263 n.7; Cel-A-Pak v. California Agric. Labor Rel. Bd., 680 F.2d 664, 668 (9th Cir.), cert. denied, 459 U.S. 1071, 74 L. Ed. 2d 633, 103 S. Ct. 491 (1982).

Discussion

I. The Judgment Does Not Have Prospective Application

Maraziti argues that the government's "inequitable conduct in refusing to return Maraziti's money, obtaining a judgment in its favor denying Maraziti's right to the money, and then reversing its position in the tax court and interpleading the money," would make prospective application of the dismissal order unfair under Fed. R. Civ. P. 60(b)(5). (Appellant's Br. at 16-17). However, the district court found that Rule 60(b)(5) has no application in this context because the order dismissing the United States was not a ...


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