53 F. 3d 339 - Ornelas v. US Postal Service

MEMORANDUM**

Pete Ornelas appeals pro se the district court's denial of his motion to reopen his employment discrimination lawsuit against the United States Postal Service. Ornelas voluntarily dismissed his action pursuant to Fed.R.Civ.P. 41(a)(1) and then filed a motion to reopen. To the extent that Ornelas challenges the voluntary dismissal, we dismiss the appeal. To the extent that Ornelas challenges the denial of his motion to reopen, we have jurisdiction pursuant to 12 U.S.C. Sec. 1291 and affirm.

An individual may not appeal a voluntary dismissal made pursuant to Fed.R.Civ.P. 41(a)(1). See Coursen v. A.H. Robins Co., 764 F.2d 1329, 1342 (9th Cir.), corrected by 773 F.2d 1049 (9th Cir.1985). Therefore, we dismiss Ornelas's appeal insofar as he attacks the voluntary dismissal made pursuant to Fed.R.Civ.P. 41(a)(1).

We review for abuse of discretion a district court's decision on a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b). Northern Alaska Envtl. Ctr. v. Lujan, 961 F.2d 886, 889 (9th Cir.1992).

Here, Ornelas voluntarily dismissed his action after failing to serve the defendants or respond to the district court's order to show cause for failure to diligently prosecute his case. Under these circumstances, we cannot say that the district court abused its discretion by denying Ornelas's motion to reopen his case. See id. Therefore, we affirm the district court's denial of Ornelas's motion to reopen.

DISMISSED IN PART; AFFIRMED IN PART.