Mikhak v. University of Phoenix Inc.

Background

Bahar Mikhak, a pro se plaintiff, filed a motion under Federal Rule of Civil Procedure 60 seeking to set aside the judgment in her earlier case. The earlier case had involved an order compelling arbitration. After Mikhak did not initiate arbitration, the court dismissed the case for failure to prosecute, while allowing her to avoid dismissal if she certified within specified deadlines that she had started arbitration. The Ninth Circuit later affirmed the dismissal.

The present motion was 25 pages long, even though the court’s Standing Order limited supporting briefs to 15 pages unless the motion was for summary judgment. The motion also included a 58-page declaration and 41 pages of exhibits containing legal arguments. The court denied the motion on that basis and then considered its arguments on the merits.

Rule 60(b)(3): Fraud, misrepresentation, or misconduct

Rule 60(b)(3) permits relief from a final judgment for fraud, misrepresentation, or misconduct by an opposing party, but the motion must be filed within one year after the judgment or order. The court held that Mikhak’s motion was untimely because she filed it more than one year after the December 5, 2017 dismissal order and more than one year after the Supreme Court denied review.

The court also held that Mikhak had not identified fraud with clear and convincing evidence. Her arguments largely repeated objections she had made when opposing arbitration, including arguments about whether she was a faculty candidate and whether she understood the arbitration agreement. The Ninth Circuit had similarly rejected her assertions that opposing counsel or the district court committed misconduct. The court therefore held that the motion failed under Rule 60(b)(3).

Rule 60(d)(3): Fraud on the court

Rule 60(d)(3) preserves a court’s power to set aside a judgment for fraud on the court. This requires a more serious showing than Rule 60(b)(3), involving a scheme designed to improperly influence the court and a grave miscarriage of justice. Because Mikhak failed to meet the lower standard under Rule 60(b)(3), the court held that she also failed under Rule 60(d)(3). The court further noted that the alleged statements by witnesses appeared to have been known to Mikhak before the 2017 dismissal.

Rule 60(b)(4): Void judgment

Rule 60(b)(4) permits relief when a judgment is void, such as when the court lacked jurisdiction or acted inconsistently with due process. Mikhak argued that the court should not have dismissed her case without a hearing about her delay in starting arbitration.

The court rejected that argument. It found no authority requiring such a hearing and explained that Mikhak had received multiple opportunities to initiate arbitration before dismissal. The court also relied on the Ninth Circuit’s conclusion that the dismissal for failure to prosecute was not an abuse of discretion because Mikhak had not followed orders directing her to initiate arbitration after being warned that noncompliance could lead to dismissal.

Rule 60(b)(6): Other extraordinary circumstances

Rule 60(b)(6) provides relief for other reasons that justify reopening a judgment, but it is reserved for extraordinary circumstances. Mikhak argued that her former lawyers’ gross negligence warranted relief.

The court held that she had not shown the kind of attorney abandonment that can qualify as an extraordinary circumstance. Her attorneys had participated in the case, responded to motions, filed motions, and attended the hearing concerning conditional dismissal. The court found that Mikhak’s case was dismissed because she did not initiate arbitration despite additional opportunities, not because her attorneys abandoned her. The motion therefore failed under Rule 60(b)(6).

Abuse-of-discretion argument and disposition

Mikhak also argued that this court abused its discretion by dismissing her earlier case and that the Ninth Circuit abused its discretion by affirming. The court held that the earlier dismissal had already been appealed and affirmed, and that the district court had no jurisdiction to review whether the Ninth Circuit itself abused its discretion.

For these reasons, the court denied Mikhak’s motion to set aside the judgment. It also vacated the hearing that had been scheduled for March 10, 2022.