California Sportfishing Protection Alliance v. Northern Recycling & Waste Services et al

Filing 13

ORDER signed by Judge Garland E. Burrell, Jr on 2/18/15 ORDERING that Plaintiff's MOTION to SET ASIDE Judgment for excusable neglect 7 is GRANTED. The Judgment 6 is VACATED and the Order 5 is rescinded. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE, a
nonprofit corporation,
Plaintiff,

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ORDER GRANTING PLAINTIFF’S
MOTION TO SET ASIDE JUDGMENT FOR
EXCUSABLE NEGLECT

v.

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No. 2:14-CV-1601-GEB-CKD

NORTHERN RECYCLING & WASTE
SERVICES, a California
corporation; and DOUGLAS
SPEICHER, an individual,

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Defendants.

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Plaintiff moves under Federal Rule of Civil Procedure

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(“Rule”) 60(b) for an order setting aside the order filed on
November 21, 2014 (ECF No. 5), that dismissed this lawsuit.

The

dismissal

any

order

issued

after

Plaintiff

failed

to

serve

defendant within the period prescribed in Rule 4(m) and failed to
comply with an order to show cause concerning this failure. (ECF
No.

4.)

Plaintiff

excusable

neglect,

argues
and

its

that

failure

under

Rule

was

due

60(b)

to

counsel‟s

this

excusable

neglect authorizes it to now seek an order vacating the judgment
entered

against

it

following

the

November

21,

2014

order and a decision rescinding the dismissal order.
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dismissal

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I.

LEGAL STANDARD

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“Rule 60 regulates the procedures by which a party may

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obtain relief from a final judgment . . . . [,and] attempts to

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strike a proper balance between the conflicting principles that

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litigation must be brought to an end and that justice should be

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done.” Delay v. Gordon, 475 F.3d 1039, 1044 (9th Cir. 2007).

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Rule 60(b) states in pertinent part: “On motion and just terms,

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the court may relieve a party . . . from a final judgment, order,

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or proceeding for . . . excusable neglect.” The question of

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whether neglect is excusable “is at bottom an equitable one,

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taking

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party‟s omission.” Pioneer Inv. Serv. Co. v. Brunkswich Assoc.

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Ltd. P‟ship, 507 U.S. 380, 395 (1993).

account

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of

all

relevant

circumstances

surrounding

the

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Inadvertence, ignorance of the rules, or
mistakes construing the rules do not usually
constitute “excusable” neglect. Nonetheless,
[the Ninth Circuit] . . . ha[s] held that
there may be some circumstances in which
simple
inadvertence
could
be
excusable
neglect.
To
determine
whether
the
inadvertence can be excusable, [courts] . . .
apply the Pioneer factors: (1) the danger of
prejudice to the nonmoving party; (2) the
length of delay; (3) the reason for the
delay, including whether it was within the
reasonable control of the movant; and (4)
whether the moving party‟s conduct was in
good faith.

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Harvest v. Castro, 531 F.3d 737, 746 (9th Cir. 2008) (citing

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Pioneer, 507 U.S. at 395)). “Rule 60(b) is remedial in nature and

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. . . must be liberally applied.” Ahanchian v. Xenon Pictures,

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Inc., 624 F.3d 1253, 1262 (9th Cir. 2010) (internal quotation

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omitted).

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II. DISCUSSION
Plaintiff argues Defendants would not be prejudiced if
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the lawsuit is reinstated since “the [D]efendants were aware of

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and participated in the case from its onset . . . . [and] the

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parties

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dispute even before the complaint was filed.” (Mot. 6:9-11, ECF

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No. 7; Tuerck Decl. ¶¶ 2, 9, 12, 24, ECF No. 7-1.)

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counsel Robert Tuerck declares that before filing suit, Plaintiff

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sent Defendants a Notice of Violations and Intent to Sue in May

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2014 and since that time, “counsel for both parties [have] had

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numerous

were

actively

working

conversations

towards

regarding

the

a

resolution

to

their

Plaintiff‟s

allegations

and

the

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likelihood of settlement.” (Tuerck Decl. ¶¶ 2, 8; Brady Decl. Ex.

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1, ECF No. 10-1.) Defendants do not identify any prejudice they

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would suffer if the motion is granted.

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The delay factor favors granting the motion since a

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“short delay” of twenty-six days exists between the entry of

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final

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reconsideration. TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d

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691, 701 (9th Cir. 2001) (finding that a motion filed less than

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one month after final judgment was entered was a “short delay”).

judgment

and

when

Plaintiff

filed

its

motion

for

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Plaintiff asserts the reason for its initial decision

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to “delay service of the complaint [was] so the [D]efendants

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could avoid the time and expense of filing a responsive pleading

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while settlement negotiations were underway”, and that failure to

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respond

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extraordinary confluence of circumstances that were beyond the

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control

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Plaintiff‟s

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[D]efendants and their counsel that [Plaintiff] . . . would be

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filing a complaint . . . [but] would delay service . . .

to

of

the

the

court‟s

Rule

Plaintiff.”

counsel

declares

4(m)

(Tuerck
that

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notice

Decl.
in

resulted

¶

June,

11;
he

from

Mot.

“an

2:2-7.)

“informed

the

so the

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[D]efendants

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responsive pleading while settlement negotiations were underway;”

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and that Defendants agreed to this. (Tureck Decl. ¶¶ 8, 10-11.)

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Counsel also declares he did not respond to the Rule 4(m) notice

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because his “father was hospitalized, [and] his health began to

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rapidly decline”, so counsel was “travel[ing] . . . for the

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funeral” on the same day “the court filed” the Rule 4(m) notice;

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and because “the job of making arrangements for [his father‟s]...

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funeral and taking over . . .
“[i]n

could

the

avoid

midst

and

expense

of

filing

a

matters left by his death fell to”

him,

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arrangements,

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(Tuerck Decl. ¶ 18, 20-21, 22, 25.)

.

.

the

time

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[he].

of

the

loss,

missed

travel,

the

and

court‟s”

the

funeral

communication.

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Defendants contend that Plaintiff has not clearly shown

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its failure to serve the compliant was actually caused by the

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death of counsel‟s father since counsel‟s declaration “fails to

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state that [counsel] actually calendared the due date for service

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of the complaint, . . . fails to state whether [counsel] employed

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a „tickler‟ system to avoid missing important dates,” and fails

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to explain why co-counsel or his law partner could not take over

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for him. (Opp‟n 4:21-5:6.)

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Plaintiff‟s counsel responds that his failure to comply

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with

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distractions caused by his father‟s illness and death” rather

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than a failure to put in place an appropriate monitoring system;

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that his law partner was also “traveling to the funeral” with him

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since she is his wife; and that “under the circumstances . . .

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[he] never thought to contact” co-counsel. (Reply 5:1-2; 5:3-6.)

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court‟s

order

is

“the

sole

and

direct

result

of

the

Plaintiff has shown that the equity factors weigh in
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its favor.

Therefore Plaintiff‟s motion will be granted.

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III. CONCLUSION

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For the stated reasons, Plaintiff‟s Rule 60(b) motion

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for relief is GRANTED. Therefore, the judgment in Docket No. 6 is

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vacated and the order in Docket No. 5 is rescinded.

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Dated:

February 18, 2015

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