Darrin v. Bank of America, N.A.

Filing 107

ORDER signed by Chief Judge Morrison C. England, Jr on 7/22/14. The Clerk is directed to reactivate this matter as an open file. Plaintiff's Third Amended Complaint is deemed filed as of 6/3/14. Defendants shall file a responsive pleading to said Third Amended Complaint not later than twenty (20) days following the date this Order is electronically filed.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JUDE DARRIN, individually, and on
behalf of the general public,
Plaintiff,

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v.

No. 2:12-cv-00228-MCE-KJN

ORDER

BANK OF AMERICA, N.A., EXPERIAN
INFORMATION SOLUTIONS, INC.,
EQUIFAX INFORMATION SERVICES
LLC., & TRANS UNION LLC.,
Defendants.

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Plaintiff Jude Darrin (“Plaintiff”) moves to set aside the June 17, 2014 Order

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entering judgment against him and in favor of Defendants Trans Union, LLC, Experian

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Information Solutions, Inc., and Equifax Information Services, LLC (“collectively

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“Defendants”) on various grounds, including mistake, inadvertence, or excusable neglect

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under Federal Rule of Civil Procedure Rule 60(b). Because this Court finds that Plaintiff

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is indeed entitled to relief based on a Rule 60(b) excusable argument alone, it will not

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address Plaintiff’s remaining arguments.

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On May 13, 2014, this Court signed a Memorandum and Order granting Plaintiff

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leave to file an amended complaint “within 20 days from the date of the date of [the]

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Memorandum and Order.” ECF No. 95, 14:25-15:2. The Order was docketed and filed
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the following day, May 14, 2014. Plaintiff thereafter filed his Third Amended Complaint

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on June 3, 2014, exactly 20 days after the aforementioned Memorandum and Order was

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filed but 21 days after it was signed.

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On June 13, 2014, defense counsel submitted an administrative request that the

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action be dismisssed because the Third Amended Complaint should have been filed

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within 20 days following the date the Memorandum and Order was signed, or by June 2,

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2014, one day before the Third Amended Complaint was in fact submitted. On June 16,

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2014, by way of Minute Order, this court dismissed the action on grounds the Third

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Amended Complaint was untimely filed (ECF No. 99). Judgment was entered

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accordingly the following day, June 17, 2014, and, as indicated above, Plaintiff now

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seeks to set aside that judgment.

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According to Plaintiff’s counsel, Linda D. Deos, she in good faith believed that the

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“date of the Order” language contained in the Court’s Memorandum and Order filed

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May 14, 2014 referred to the filed date rather than the date of signature. In addition,

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Plaintiff’s counsel points to Ninth Circuit authority finding that the date of entry, rather

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than the date an order is signed, is normally the critical date within which to assess

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timeliness. See, e.g., Calhoun v. United States, 647 F.2d 6, 8 (9th Cir. 1981). The

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bottom line is that it was not patently unreasonable for Plaintiff’s counsel to construe the

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Memorandum and Order in the way she did.

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In assessing whether excusable neglect is present, the United States Supreme

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Court recognizes that “the determination is at bottom an equitable one, taking account of

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all relevant circumstances surrounding the party’s omission,” including the danger of

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prejudice to the [nonmoving party], the length of the delay and its potential impact on

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judicial proceedings, the reason for the delay, including whether it was within the

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reasonable control of the movant, and whether the movant acted in good faith.” Pioneer

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Investment Services Co. v. Brunswick Associates, 507 U.S. 380, 395 (1993).

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These so-called Pioneer factors weigh in favor of finding excusable neglect under

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the circumstances confronted herein. Given the fact that the delay in filing the Complaint
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was only some 18 hours, any claim of prejudice here is far-fetched. Moreover, as

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indicated above, Plaintiff counsel’s interpretation of the Court’s deadline was not per se

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unreasonable. Nor is there any evidence of bad faith. Consequently, the Court finds

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that Plaintiff’s excusable neglect argument is well-taken, and that the judgment against

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Plaintiff should therefore be set aside.

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Plaintiff’s Motion to Vacate Judgment (ECF No. 101) is therefore GRANTED.1

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Plaintiff is nonetheless admonished to scrupulously adhere to this Court’s orders in the

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future as the case progresses, and to err on the side of caution should any question

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arise with respect to deadlines or any other requirement imposed by the Court during the

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continued pendency of this litigation.
The Clerk of Court is directed to reactivate this matter as an open file. Plaintiff’s

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Third Amended Complaint is deemed filed as of June 3, 2014. Defendants shall file a

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responsive pleading to said Third Amended Complaint not later than twenty (20) days

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following the date this Order is electronically filed.

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IT IS SO ORDERED.
Dated: July 22, 2014

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

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