Unreported / Non-Citable
Background
Peak Oil Holdings LLC and Peak Operator LLC (Peak), plaintiffs-counterdefendants-appellants, appealed from the district court's entry of a default judgment in their case against the County of Ventura, defendant-counterclaimant-appellee. Peak sought to reverse the district court's order under Federal Rule of Civil Procedure 12(b)(6) dismissing its takings claim against the County. The appeal was docketed in the Ninth Circuit as No. 25-4114, arising from Central District of California case No. 2:21-cv-00734-DSF-AJR.
The appeal was argued and submitted on October 21, 2026, in Pasadena, California, before Circuit Judges N.R. Smith and Johnstone, and District Judge William Horsley Orrick of the Northern District of California, sitting by designation. The district court proceedings were presided over by District Judge Dale S. Fischer of the Central District of California. The panel issued an unpublished memorandum disposition, which is not precedent except as provided by Ninth Circuit Rule 36-3.
The Court’s Holding
The Ninth Circuit dismissed the appeal because Peak never filed a motion in the district court under Federal Rules of Civil Procedure 55(c) or 60(b) to set aside the default judgment. The court relied on Consorzio Del Prosciutto di Parma v. Domain Name Clearing Co., 346 F.3d 1193, 1195 (9th Cir. 2003), and In re Lam, 192 F.3d 1309, 1311 (9th Cir. 1999), for the proposition that the appeal must be dismissed under these circumstances. This procedural default was an independent and sufficient ground for dismissal.
The court further explained that, even if Peak had moved to set aside the default judgment, Peak has not mentioned, let alone challenged, the district court's dismissal of its claims under Federal Rule of Civil Procedure 41(b) as a sanction for violating a court order. Citing Brown v. Rawson–Neal Psychiatric Hospital, 840 F.3d 1146, 1148 (9th Cir. 2016), the court noted that when a plaintiff's claims were originally dismissed under Rule 12(b)(6) and then later under Rule 41(b), the Rule 12(b)(6) dismissal was not reviewable because the plaintiff did not argue 'that the district court abused its discretion in dismissing [the plaintiff's] federal claims under Rule 41(b).' Accordingly, Peak's claim on appeal that the district court erred by dismissing its takings claim under Rule 12(b)(6) was not properly before the court.
Key Takeaways
- A party seeking appellate review of a default judgment must first move in the district court under Rule 55(c) or Rule 60(b) to set aside the default; failure to do so requires dismissal of the appeal.
- Even if a party moves to set aside a default judgment, an earlier Rule 12(b)(6) dismissal is not reviewable on appeal if the party fails to challenge a later, independent Rule 41(b) dismissal of its claims as a sanction for violating a court order.
- The panel's reliance on Brown v. Rawson–Neal Psychiatric Hospital supports the second, independent reason for dismissal: the Rule 12(b)(6) dismissal was not reviewable because Peak did not argue that the district court abused its discretion in dismissing its federal claims under Rule 41(b).
- The Ninth Circuit did not reach the merits of Peak's takings claim against the County of Ventura.
Why It Matters
This unpublished memorandum disposition reinforces the Ninth Circuit's procedural requirements for appealing a default judgment. A party must first seek relief in the district court under Rule 55(c) or Rule 60(b) before the appellate court will consider the appeal. The panel's citation to Consorzio Del Prosciutto di Parma and In re Lam confirms that this requirement is well established in the circuit.
The decision also illustrates the independent significance of a Rule 41(b) sanction dismissal. When a district court dismisses claims under Rule 41(b) as a sanction, an appellant cannot obtain review of an earlier Rule 12(b)(6) dismissal without challenging the Rule 41(b) dismissal itself. The panel's citation to Brown underscores that the failure to argue abuse of discretion in the Rule 41(b) dismissal renders the earlier dismissal unreviewable, even if the appellant had otherwise preserved its challenge to the default judgment.