Spain v. Sundt Construction Incorporated

Filing 11

ORDER granting 9 Plaintiff's Motion for Relief from Judgment and Order. ORDER that the Judgment entered 10/13/11 7 is vacated. Signed by Judge James A Teilborg on 1/30/12.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Sundt Construction, Inc., an Arizona)
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corporation,
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Defendant.
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Stephanie Spain,

No. CV-11-1617-PHX-JAT
ORDER

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Pending before the Court is Plaintiff’s Motion for Relief from Judgment and Order

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Pursuant to Fed.R.Civ.P.60(b)(1) (Doc. 9). The Court now rules on the Motion.

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I.

BACKGROUND

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Plaintiff pro se filed a Title VII sexual harassment case on August 18, 2011 (Doc. 1).

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On September 7, 2011, the Court issued a Notice of Assignment and Order giving Plaintiff

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until September 14, 2011 to file a written consent to magistrate judge jurisdiction or an

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election to proceed before a United States District Judge (Doc. 4). Plaintiff failed to comply

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with the Order and, on September 20, 2011, Magistrate Judge Lawrence O. Anderson issued

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an Order for Plaintiff to show cause why the case should not be dismissed without prejudice.

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(Doc. 5). Plaintiff failed to comply with the Court’s Order and, on October 13, 2011, the

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Court issued an Order dismissing Plaintiff’s complaint without prejudice (Doc. 6).

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On October 20, 2011, Plaintiff, having retained counsel, filed a motion for relief from

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the Court’s judgment and Order.

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II.

RELIEF FROM A FINAL JUDGMENT OR ORDER

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A.

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Federal Rule of Civil Procedure 60(b)(1) permits a court to relieve a party or its legal

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representative from a final judgment, order, or proceeding for “mistake, inadvertence,

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surprise, or excusable neglect.” FED. R. CIV. P. 60(b). In this case, Plaintiff must show

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excusable neglect to qualify for relief under Rule 60.

Rule 60(b) of Civil Procedure

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B.

Legal Standard

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The Supreme Court has explained the meaning of “excusable neglect” as

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“encompass[ing] situations in which the failure to comply with a filing deadline is

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attributable to negligence.” Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd., 507 U.S.

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380, 394 (1993) (discussing “excusable neglect” under the bankruptcy rules).

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The Ninth Circuit has adopted the equitable test of Pioneer for excusable neglect

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under Rule 60(b). Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997).

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Excusable neglect is a “somewhat ‘elastic’ concept.” Id. at 381 (citing Pioneer, 507 U.S. at

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391). While inadvertence, ignorance of the rules, or mistakes construing the rules will not

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usually constitute excusable neglect, a court reaching a determination must examine all of

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the relevant circumstances involved. Id. at 381-82.

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Four nonexclusive factors provide a framework for determining whether missing a

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filing deadline constitutes excusable neglect: “(1) The danger of prejudice to the opposing

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party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason

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for the delay; and (4) whether the movant acted in good faith.” Lemoge v. U.S., 587 F.3d

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1188, 1192 (9th Cir. 2009) (quoting Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223-24);

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see also Briones, 116 F.3d at 381 (citing Pioneer, 507 U.S. at 395). A court should explicitly

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use this four-factor Pioneer-Briones framework for an analysis of excusable neglect under

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Rule 60(b)(1). Lemoge, 587 F.3d at 1192, 1194.

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Because the Pioneer standard is an equitable one, after considering the four

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nonexclusive factors, a court must consider any other relevant circumstances that exist.
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Briones, 116 F.3d at 381 (citing Pioneer, 507 U.S. at 395). If the movant cannot file her

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action because the statute of limitations has run and there is “no or only slight prejudice to

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the opposing party if relief is granted,” the court should additionally consider prejudice to

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the movant if relief is denied. See Lemoge, 587 F.3d at 1195 (holding that prejudice to the

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movant should be considered in evaluating a Rule 60(b) motion after a dismissal for

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noncompliance with Rule 4(m)).

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C.

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The Court will first apply the four-factor framework of Pioneer-Briones. Under the

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first factor, the Court must consider the danger of prejudice to the opposing party. Defendant

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has not responded to Plaintiff’s Rule 60(b) motion, and thus has not alleged that it will suffer

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any prejudice if the motion is granted.1 While any delay involves the possibility of prejudice

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to the defendant, this alone is insufficient to require denial of a Rule 60(b)(1) motion.

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Bateman, 231 F.3d at 1225. There is no evidence that granting relief will affect the

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Defendant’s ability to litigate the case on its merits or cause Defendant to alter its litigation

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strategy. It is therefore unlikely that Defendant will suffer significant prejudice if the motion

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is granted.

Discussion

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The second factor considers the length of the delay and its potential impact on the

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proceedings. Rule 60(c) requires a Rule 60(b)(1) motion to be brought “within a reasonable

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time” and “no more than a year after the entry of the judgment or order or the date of the

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proceeding.” FED. R. CIV. P. 60(c). Reasonable time depends upon the facts of each case.

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Lemoge, 587 F.3d at 1196-97. Plaintiff’s motion was filed seven days after the dismissal of

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her case. (See Docs. 6 & 9). The Ninth Circuit has previously found delays of twelve days

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and seven months to be reasonable. See Lemoge, 587 F.3d at 1197; Bateman, 231 F.3d at

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1225. Here, a seven day delay is minimal, particularly in light of the fact that, at present, it

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is only five months since Plaintiff filed her lawsuit. Accordingly, it seems unlikely that

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Plaintiff’s seven day delay in filing her Rule 60(b) motion will have a significant impact on

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The Court notes that Defendant has not been served in this matter.
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the proceedings.

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The third Pioneer-Briones factor considers the reason for the delay. On its face, this

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factor appears to be the heart of the “excusable neglect” analysis. Excusable neglect does not

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include situations in which the failure to file on time is due to “reasons beyond his or her

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control.” Pioneer, 507 U.S. at 394; see also Briones, 116 F.3d at 382 n. 1. The Ninth Circuit

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has held that, in some cases, medical problems can be adequate reasons for a delay or failure

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to comply with a court order. See Lemoge, 587 F.3d at 1197. Plaintiff has supplied

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documentation showing evidence of post-traumatic stress disorder (PTSD), but her

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documentation, dated April 18, 2011, predates the time period in which she failed to comply

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with court orders. (See Doc. 9-1). It is therefore uncertain whether Plaintiff suffered from the

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same symptoms in September 2011. However, the documentation shows a history of

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psychological problems from December 2009 to April 2011. Plaintiff was also initially pro

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se and, after retaining counsel, failed to forward the Court’s September 19, 2011 Order to her

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counsel’s office. (Doc. 9 at 3).

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As to the fourth factor, whether the movant acted in good faith, there is no evidence

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that Plaintiff’s failure to comply with the Court’s orders was from anything other than good

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faith. It certainly does not appear that Plaintiff chose to have her case dismissed out of

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“deviousness or willfulness,” but rather that her inaction resulted from “negligence and

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carelessness.” Bateman, 231 F.3d at 1225. Thus, although the evidence does not strongly

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support Plaintiff’s excuse for failing to comply with Court orders, the factors favor granting

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relief to Plaintiff. This is especially so considering the prejudice to the Plaintiff if her motion

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is denied.

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Unless Plaintiff succeeds on this Rule 60(b)(1) motion, she will “endure the ultimate

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prejudice of being forever barred from pursuing [her] claims.” Lemoge, 587 F.3d at 1196.

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Plaintiff was required to file her lawsuit within a 90-day period after receiving her Notice of

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Right to Sue from the Equal Employment Opportunity Commission, a period which expired

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shortly after she commenced this lawsuit. (Doc. 9 at 7-8). In Lemoge, the Ninth Circuit held

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that the combination of slight or no prejudice to the non-moving party, the running of the
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statute of limitations, and a Rule 60(b)(1) motion to set aside a dismissal for noncompliance

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with Rule 4(m) required that the court consider the prejudice to the movant if relief is denied.

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Lemoge, 587 F.3d at 1195. Here, Plaintiff has moved to set aside a dismissal for

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noncompliance with Rule 73(b), but the logic similarly holds. Accordingly, the Court must

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consider, in addition to the four Pioneer-Briones factors, the prejudice to Plaintiff if her

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motion is denied.

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If the Court denies Plaintiff’s Rule 60(b)(1) motion, Plaintiff will suffer substantial

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prejudice. She cannot re-file her claims because the statute of limitations has run. The

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prejudice to Plaintiff is evaluated with respect to the prejudice to Defendant (the first

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Pioneer-Briones factor). See Lemoge, 587 F.3d at 1196. Because there is no evidence of any

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meaningful prejudice to Defendant if the motion is granted, and granting the motion would

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prevent substantial prejudice to Plaintiff and permit the adjudication of her case on the

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merits, the equitable test of Pioneer strongly favors granting relief.

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Under the circumstances involved, Plaintiff has demonstrated that her failure to

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comply with the Court’s September 7, 2011 and September 19, 2011 Orders was excusable

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neglect, and under Rule 60(b)(1), the Court relieves Plaintiff from the final judgment and

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Order dated October 13, 2011.

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Accordingly,

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IT IS ORDERED granting Plaintiff’s Motion for Relief from Judgment and Order

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Pursuant to Fed.R.Civ.P.60(b)(1) (Doc. 9).
IT IS FURTHER ORDERED that the Judgment entered October 13, 2011 (Doc. 7)
is vacated.
DATED this 30th day of January, 2012.

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