FILED

NOT FOR PUBLICATION

MAY 22 2025

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT ADOLFO GARCIA, Personal No. 24-1485 Representative/Successor-in-Interest, D.C. No.

2:23-cv-01727-MWF-MAR

Plaintiff - Appellant,

MEMORANDUM* v. COSTCO WHOLESALE CORPORATION,

Defendant - Appellee, and JEN PELL, DOES, 1 to 50, Inclusive,

Defendants.

Appeal from the United States District Court

for the Central District of California

Michael W. Fitzgerald, District Judge, Presiding

Submitted May 14, 2025**

Pasadena, California Before: IKUTA, R. NELSON, and LEE, Circuit Judges.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

Apolonia Cortes appeals from the district court’s denial of her motion to set aside the order of dismissal pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure (the Rule 60(b)(1) motion).1 We have jurisdiction under 28 U.S.C. § 1291. We affirm.

The district court did not abuse its discretion in denying Cortes’s Rule 60(b)(1) motion, see Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1100 (9th Cir. 2006), as it properly applied the four factors set forth in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 395 (1993).

With respect to the first Pioneer factor, prejudice to the nonmovant, the district court did not abuse its discretion in concluding that, given the loss of evidence that had resulted from Cortes’s death, the prejudice to Costco Wholesale Corporation (Costco) counseled against granting the Rule 60(b)(1) motion. The district court reasonably rejected Cortes’s argument that Costco bore responsibility for the loss of evidence because it postponed Cortes’s deposition until after the parties’ conference pursuant to Rule 26(f) of the Federal Rules of Civil Procedure. Although Cortes’s death prejudiced both parties, Pioneer does not require a

1

Cortes died in August 2023. Cortes’s son and personal representative, Adolfo Garcia, has been substituted as plaintiff-appellant in this case. Dkt. 35.

2 consideration of prejudice to the moving party. 507 U.S. at 395. Therefore, the district court did not abuse its discretion in concluding that the first Pioneer factor weighed against granting Cortes’s Rule 60(b)(1) motion.

Nor did the district court abuse its discretion in determining that the second Pioneer factor, the length of delay and its impact on judicial proceedings, weighed against granting Cortes’s Rule 60(b)(1) motion. Delays of similar duration may be excusable. See Lemoge v. United States, 587 F.3d 1188, 1197 (9th Cir. 2009) (concluding that a delay of “about seven months” was excusable). However, whether a Rule 60(b)(1) motion was made within a reasonable time “depends upon the facts of each case.” Id. at 1196. Here, the district court dismissed the case without prejudice in May 2023, Cortes died in August 2023, and counsel filed its Rule 60(b)(1) motion in January 2024. Given the loss of evidence that resulted from Cortes’s death, the delay of nearly eight months after the district court dismissed the case was significant.

Cortes concedes that the district court did not err in determining that the third Pioneer factor, the reason for the delay, weighed against granting her Rule 60(b)(1) motion.

Last, the district court did not err in concluding that the final Pioneer factor, good faith, counseled in favor of granting the motion.

3

Because three out of four Pioneer factors weighed against granting Cortes’s Rule 60(b)(1) motion, the district court did not abuse its discretion in denying that motion. Cf. Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224 (9th Cir. 2000) (holding that a district court abuses its discretion when it fails to “conduct the equitable analysis laid out in Pioneer”).

AFFIRMED.2

2

Costco’s motion for judicial notice (Dkt. 25) is DENIED.

4