Lewallen v. Home Depot USA Incorporated

Filing 52

ORDER, that Plaintiff's 45 Motion to Vacate Judgment is granted. That the August 3, 2012 Minute Order (Doc. 42) terminating this case is vacated. That Defendant's 43 Bill of Costs and 44 Motion for Attorneys' Fees are denied without prejudice as premature. That Defendant file a response to the Second Amended Complaint (Doc. 51) by October 1, 2012. Signed by Judge Neil V Wake on 9/11/12.(DMT)

1

WO

2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9
10

Yvonne Lewallen,

11

No. CV 11-01639-PHX-NVW
Plaintiff,

12

vs.

13

ORDER

Home Depot USA, Inc.,

14

Defendant.

15
16

Before the Court is Plaintiff’s Motion to Vacate Judgment (Doc. 45). On August

17

27, 2012, Defendant filed a response in opposition (Doc. 48). Plaintiff did not file a reply

18

in support of her motion to vacate judgment.

19

I.

BACKGROUND

20

On July 23, 2012, the Court dismissed Plaintiff’s First Amended Complaint with

21

leave to file a Second Amended Complaint by July 30, 2012. Plaintiff did not file a

22

Second Amended Complaint by July 30, 2012. On August 3, 2012, no Second Amended

23

Complaint having been filed, the Clerk of the Court terminated this case. On August 16,

24

2012, Plaintiff moved to vacate the judgment under “Rules 55(c) and 60(c) of the Federal

25

and Arizona Rules of Civil Procedure.” On August 20, 2012, the Court ordered Plaintiff

26

to supplement her motion by August 29, 2012, by filing any further proposed complaint.

27

On August 30, 2012, Plaintiff filed a Second Amended Complaint, and on August 31,

28

1
2
3
4

2012, she filed a red-lined version of her Amended Complaint as required by LRCiv 15.1
and ordered by the Court. (Docs. 49, 51.)
II.

LEGAL STANDARD

5

Fed. R. Civ. P. 55(c) permits the Court to set aside an entry of default for good

6

cause and a default judgment under Fed. R. Civ. P. 60(b). It does not apply here. Neither

7

do the Arizona Rules of Civil Procedure.

8

Fed. R. Civ. P. 60(c) sets time limits for filing a motion under Fed. R. Civ. P.

9

60(b) and provides that the filing of such a motion does not affect the judgment’s finality

10

or suspend its operation. It also does not provide a basis for vacating the termination of

11

this case.

12

Fed. R. Civ. P. 60(b) provides the grounds upon which the Court may relieve a

13

party from a final judgment, order, or proceeding. These include mistake, inadvertence,

14

surprise, or excusable neglect. Fed. R. Civ. P. 60(b)(1). Whether to grant relief for

15

excusable neglect is an equitable determination, considering all circumstances relevant to

16

the party’s omission. Brandt v. Am. Bankers Ins. Co., 653 F.3d 1108, 1111 (9th Cir.

17

2011).

18

III.

ANALYSIS

19

Plaintiff contends that her failure to file a Second Amended Complaint by July 30,

20

2012, amounts to inadvertence or excusable neglect because her counsel was out of town

21

when the July 23, 2012 Order was filed and had difficulty accessing emails and internet.

22

Plaintiff’s motion does not state when her counsel became aware of the July 23, 2012

23

Order, what arrangements she had made to fulfill her responsibilities to her clients while

24

she was out of town and without email and internet access, or why she did not move for

25

an extension of time to file a Second Amended Complaint immediately upon her return to

26

Phoenix. The motion states only that upon her return to Phoenix, counsel attended a

27

week-long Arizona State Bar program and is a solo practitioner with very limited staff.

28

-2 

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

Counsel’s avowals show neglect, but not excusable neglect.

demonstrate lack of concern for complying with Court orders and protecting her client’s
interests.
However, the Court usually provides parties with two weeks, rather than one
week, to file an amended pleading. Finding this to be inadvertence on the part of the
Court, relief under Rule 60(b) will be granted.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Vacate Judgment (Doc.
45) is granted.
IT IS FURTHER ORDERED that the August 3, 2012 Minute Order (Doc. 42)
terminating this case is vacated.
IT IS FURTHER ORDERED that Defendant’s Bill of Costs (Doc. 43) and Motion
for Attorneys’ Fees (Doc. 44) are denied without prejudice as premature.
IT IS FURTHER ORDERED that Defendant file a response to the Second
Amended Complaint (Doc. 51) by October 1, 2012.
Dated this 11th day of September, 2012.

17
18
19
20
21
22
23
24
25
26
27
28

Moreover, her actions

-3