Perrin v. Aluminum Co. of America (197 F.2d 254, 1952)

HEALY, Circuit Judge.

This action was commenced in a Washington state court to recover damages for injury allegedly done to plaintiffs’ crops by fumes from a plant of the defendant Aluminum Company, a Pennsylvania corporation. One Thayer, a resident of Washington, was joined as a defendant. One of the plaintiffs was likewise a resident of that state. The cause was removed to the federal court on petition of the corporate defendant, buttressed by affidavit, asserting that Thayer was improperly and fraudulently joined. The plaintiffs moved for a remand, supporting their motion by an affidavit that Thayer was the manager in charge of the offending plant, hence had been properly joined. The motion was denied without formal findings.

Thereupon the defendants moved for a dismissal on the ground that the action was barred by a two-year statute of limitations of the State of Washington. Cf. 3 Beale, Conflict of Laws, 1620. This motion was granted and a judgment of dismissal entered. The plaintiffs appealed, asserting error both in the judgment of dismissal and in the denial of their motion to remand, We dismissed the appeal for want of jurisdiction because notice thereof had not been filed within the time prescribed by law. Judgment on mandate was thereafter entered by the district coi*t.

. . . The plaintiffs then moved in that court to vacate the judgment on mandate, to vacate the judgment of dismissal; to vacate the order of the district court denying remand; and for an order remanding the cause to the state court. The present appeal is from the denial of this motion.

The motion was made under Rule 60(b), Fed.Rules Civ.Proc. 28 U.S.C.A., permitting the district court to relieve a party from a final judgment, order, or proceeding for specified reasons, including under subdivision (6) “any other reason justifying relief from the operation of the judgment.” Appellants appear to have placed their reliance on subdivision (6). They have not shown, nor do they claim, that there has been any mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud or misconduct such as might warrant the vacation of a judgment under other provisions of the rule. They acknowledge that their motion to vacate was addressed to the legal discretion of the district court and that its decision wil1 not be dlsturbed except for abuse of discretion, See Independence Lead Mines Co. v. Kingsbury, 9 Cir., 175 F.2d 983, 988, and cases cited.

We are not prepared to say that the court abused its discretion in any particular. On tbe contrary we think its discretion was rightly exercised. Rule 60(b) was not intended to be resorted to as an alternative review by appeal, nor as a means of enlarging by indirection the time for apPea3 except in compelling circumstances where Justice re