Wynes, et al v. Kaiser Permanente Hospitals, et al

Filing 31

ORDER signed by Judge Morrison C. England, Jr. on 12/10/2010 GRANTING plaintiffs' 26 Motion construed as a Motion for Relief under Rule 60(b). Plaintiffs have 10 days from date this Order is electronically filed to timely Amended Complaint. (Marciel, M)

Wynes, et al v. Kaiser Permanente Hospitals, et al

Doc. 31

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 Through the Motion presently before the Court, Plaintiffs seek relief from the Court's Minute Order filed September 17, 2010. Because no amended complaint was filed by September 3, ----oo0oo---v. KAISER PERMANENTE HOSPITALS, et al, ROCHELLE WYNES, et al, Plaintiffs, ORDER No. 2:10-cv-00702-MCE-GGH UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

2010, as Plaintiffs were required to do by the Court's August 19, 2010 Minute Order filed as an addendum to its Memorandum and Order signed on August 12, 2010, the Court's September 17 Order dismissed, without further leave to amend, those portions of Plaintiffs' complaint for which the requisite exhaustion of administrative remedies had not been demonstrated. /// 1

Dockets.Justia.com

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Plaintiffs ostensibly seek reconsideration of the Court's September 17, 2010 Order. In the view of this Court, however,

Plaintiffs' request is more properly construed as a Motion for Relief under Federal Rule of Civil Procedure 60(b). The Motion

will consequently be analyzed as having been brought under Rule 60(b). Federal Rule of Civil Procedure 60(b) permits this Court to relieve a party or his representative from an order or judgment on various grounds, including said party's "mistake, inadvertence, surprise or excusable neglect." 60(b)(1). Fed. R. Civ. P.

Motions for relief from judgment pursuant to

Rule 60(b) are addressed to the sound discretion of the district court. 2004). Here, Plaintiffs' counsel, Ellen Dove, has submitted a declaration indicating that while she reviewed the Court's August 13, 2010 Memorandum and Order, which permitted leave to amend but did not specify a deadline for doing so, because of her vacation schedule she overlooked the subsequent August 19, 2010 Minute Order and did not realize she had missed the subsequently imposed September 3, 2010 deadline for filing an amended pleading until that time had already passed. Ms. Dove notified the Court Casey v. Albertson's Inc., 362 F.3d 1254, 1257 (9th Cir.

of her error on September 17, 2010, the same day she was notified that no further leave would be permitted due to the lapsed deadline. Order. /// /// 2 She thereafter moved for relief from the September 17

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Counsel's error in this regard appears to be a classic example of the kind of mistake Rule 60(b) was intended to rectify. Consequently, Plaintiffs' Motion, construed as a Motion Plaintiffs have ten

for Relief under Rule 60(b), is GRANTED.1

(10) days from the date this Order is electronically filed to file a timely amended complaint in this matter. IT IS SO ORDERED. Dated: December 10, 2010

_____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

Because oral argument was not be of material assistance, the Court ordered this matter submitted on the briefs. E.D. Cal. Local Rule 230(g). 3

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