923 F. 2d 861 - Almoguera v. Allstate Insurance Company
923 F2d 861 Almoguera v. Allstate Insurance Company
923 F.2d 861
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Gloria ALMOGUERA, for herself and as guardian-ad-litem of
minors Lee Ann Almoguera and Donya Almoguera,
Plaintiffs-Appellees/Cross-Appellants,
v.
ALLSTATE INSURANCE COMPANY,
Real-party-in-interest-Appellant/Cross-Appellee,
Danny Almoguera, Defendant-Appellant/Cross-Appellee.
Nos. 90-15674, 90-16029.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 8, 1990.
Decided Jan. 11, 1991.
Before SKOPIL, BEEZER and FERNANDEZ, Circuit Judges.
ORDER
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Allstate's appeal of the denial of its motions under Fed.R.Civ.P. 59 and 60(b) to set aside the judgment for lack of subject matter jurisdiction is DISMISSED.
Allstate provided the defendant, Danny Almoguera, with counsel until the eve of trial, when it concluded that it owed the defendant no duty to defend or indemnify him. Allstate never was named a party to the lawsuit and it never moved to intervene. Allstate chose not to participate in the proceedings until almost one year after judgment was rendered, even though it had actual knowledge of the proceedings and their substance. See Citibank Int'l v. Collier-Traino, Inc., 809 F.2d 1438, 1441 (9th Cir.1987). Other Circuits are in accord that nonparties generally do not have standing to attack a judgment under Rule 60(b).1
When a district court is faced with a motion by a nonparty to vacate a judgment, the court applies the same standards used when a nonparty attempts to appeal from the judgment itself. Collier-Traino, 809 F.2d at 1440-41. Entertaining an appeal by a nonparty is discretionary, EEOC v. Pan American World Airways, 897 F.2d 1499, 1504 (9th Cir.), cert. denied, 59 U.S.L.W. 3244 (1990), and requires exceptional circumstances. Collier-Traino, 809 F.2d at 1441. Nonparties cannot appeal unless they actually participated in proceedings before the district court and the equities weigh in favor of hearing the appeal. Pan Am, 897 F.2d at 1504. A nonparty must, of course, also have a personal stake in the outcome of the litigation discernible from the record. Id.
Allstate is not party to this action. It has no direct interest in the judgment. It is not in privity with the defendant. It claims to owe the defendant no duty to defend or indemnify. Therefore, Allstate lacked standing to move the district court under 60(b), see Kem Mfg. Corp. v. Wilder, 817 F.2d 1517 (11th Cir.1987), and lacks standing to appeal. Gloria Almoguera's request for sanctions under Rule 38 is DENIED. Allstate's appeal is DISMISSED.
See, e.g., Kem Mfg. Corp. v. Wilder, 817 F.2d 1517, 1519-21 (11th Cir.1987) (noting exceptions for those in privity with defendant and for those alleging fraud on the court); National Acceptance Co. of Am. v. Frigidmeats, Inc., 627 F.2d 764, 766 (7th Cir.1980) ("It is well-settled that 'one who was not a party lacks standing to make [a 60(b) ] motion.' ") (quoting 11 C. Wright & A. Miller, Federal Practice & Procedure Sec. 2865, at 225-26 (1973))