2008-02-26_Dan_Cole_v._County_of_Hawaii_-_Order_denying_plaintiff's_motion_to_vacate

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Case 1:05-cv-00325-JMS-BMK Document 43 Filed 02/26/2008 Page 4 of 6 for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding." Fed. R. Civ. P. 60(c)(1). "What constitutes a `reasonable time' depends upon the facts of each case, taking into consideration the interest in finality, the reason for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and the prejudice to the opposing parties." Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 198 1) (per curiam). Moreover, a party who files for Rule 60(b) relief after the time for appeal has expired must establish "the existence of extraordinary circumstances which prevented or rendered him unable to prosecute an appeal." Plotkin v. Pac. Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982) (citation omitted). Plaintiff filed the present motion nearly two years after his case was dismissed, or more than 22 months after the time to appeal that dismissal had expired. See Fed. R. App. P. 4(a). He is thus precluded from seeking to vacate the judgment based on mistake, newly discovered evidence, or fraud under subsections (1)-(3). To the extent Plaintiff seeks relief under subsections (4), (5), or (6), he has offered no explanation to excuse the delay in filing his motion, regardless of how it is construed. See Plotkin, 688 F.2d at 1293. 4