Ferdinand REYNOLDS, Plaintiff-Appellant, v. James GOMEZ, Defendant, and Theodore White, Warden; Ivalee Henry; Stanley Wang, Defendants-Appellees, 203 F. App'x 876

MEMORANDUM We construe Appellant Reynolds’s pro per July 20, 2005 letter, seeking relief from the judgment entered on June 17, 2004, as a Rule 60(b)(4) motion under the Federal Rules of Civil Procedure. The order “disregarding” Reynolds’s filing constitutes a denial of that motion. Reynolds has timely appealed from that denial. Because Reynolds did not receive notice of the district court proceedings, or an opportunity to be heard in those proceedings, we conclude that the district court erred in denying Reynolds’s motion under Rule 60(b)(4).

The orders sent to Reynolds’s trial attorney Falcone did not constitute adequate notice because Falcone was not acting as Reynolds’s attorney. Among other things, Falcone’s interests were adverse to those of Reynolds, Reynolds had filed pro per motions after the trial, and both initial notices to Falcone were returned to the court marked as undeliverable. No documents were submitted by Reynolds, or on behalf of Reynolds, in the district court proceedings. Accordingly, we reverse the denial of Reynolds’s Rule 60(b)(4) motion and vacate the judgment below.

We remand for an evidentiary hearing, as ordered by this court in 2004, on the issue of whether Reynolds conditioned his waiver of a jury trial on a bench trial before the magistrate judge. JUDGMENT VACATED; REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.