                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 16 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


FRED KENNETH MACDONALD,                          No.   15-56429

              Plaintiff-Appellant,               D.C. No.
                                                 3:11-cv-01088-BEN-KSC
 v.

UNITED STATES OF AMERICA; et al.,                MEMORANDUM*

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                          Submitted February 13, 2017**
                              Pasadena, California

Before: D.W. NELSON, TALLMAN, and N.R. SMITH, Circuit Judges.

      Appellant Fred Kenneth MacDonald (“MacDonald”) appeals the district

court’s denial of his Federal Rule of Civil Procedure 60(b) motion to reopen his

case, vacate his voluntary dismissal without prejudice, and enter a new dismissal


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
with prejudice. A district court’s denial of a Rule 60(b) motion is a final,

appealable order. Griffin v. Gomez, 741 F.3d 10, 25 (9th Cir. 2014). We have

jurisdiction under 28 U.S.C. § 1291. We review the district court’s denial of a

Rule 60(b) motion for an abuse of discretion, Lemoge v. United States, 587 F.3d

1188, 1191–92 (9th Cir. 2009), and we affirm.

      The district court did not abuse its discretion in denying MacDonald’s Rule

60(b) motion because MacDonald failed to establish grounds for relief. See

Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1100 (9th Cir. 2006) (allowing

reversal of a Rule 60(b) order only if the district court “does not apply the correct

law, rests its decision on a clearly erroneous finding of a material fact, or applies

the correct legal standard in a manner that results in an abuse of discretion.”

(quoting Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1043 (9th Cir.

1992))).

      We do not reach MacDonald’s arguments concerning the merits of the

underlying case because “[a]n appeal from a denial of a Rule 60(b) motion brings

up only the denial of the motion for review, not the merits of the underlying

judgment.” Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989); see also Floyd v.

Laws, 929 F.2d 1390, 1400 (9th Cir. 1991).

      The parties shall bear their own costs on appeal.


                                           2
AFFIRMED.




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