Willis v. JPMorgan Chase Bank, N.A.

Filing 23

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 11/27/2017 DENYING 15 Plaintiff's Motion to Set Aside the Judgment. (Kirksey Smith, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ELIZABETH A. WILLIS, 12 13 14 15 v. JP MORGAN CHASE BANK, N.A.; and DOES 1-20 inclusive, 20 21 22 23 24 25 26 27 MEMORANDUM AND ORDER RE: MOTION TO SET ASIDE JUDGMENT Defendants. 17 19 2:17-00366 WBS AC Plaintiff, 16 18 CIV. NO. Before the court is plaintiff’s request for relief under Federal Rule of Civil Procedure 60(b). (Pl.’s Mot. (Docket No. 15).) The Motion requests that the court set aside its Final Judgment entered on May 5, 2017, (Docket No. 14) and grant leave to file plaintiff’s proposed First Amended Complaint. (Id.) On January 12, 2017, plaintiff Elizabeth A. Willis filed a Complaint in state court against JPMorgan Chase Bank, N.A. for violation of the California Homeowner’s Bill or Rights and negligence arising out of defendant’s alleged mishandling of plaintiff’s loan modification requests. Removal Ex. A.) (Def.’s Notice of On April 5, 2017, upon defendant’s motion, the 28 1 1 court dismissed plaintiff’s Complaint without prejudice to 2 refiling an amended complaint within twenty days from the date 3 the Order was signed. 4 (Docket No. 12).) 5 closed based on plaintiff’s failure to file an amended complaint 6 by the court’s deadline. 7 (Mem. and Order Re: Mot. to Dismiss On May 4, 2017, the court ordered the case (Minute Order (Docket No. 13).) Plaintiff’s counsel (“plaintiff”) asks the court to 8 reopen the judgment because she made an inadvertent error that 9 led to her failure to file the proposed First Amended Complaint 10 by the court ordered deadline. (Pl.’s Mot. at 4.) 11 states she was out of town on a family emergency when the court 12 granted defendant’s Motion to dismiss. 13 because of a change in staff, the office manager was not on the 14 “serve list” and thus, the deadline to file the First Amended 15 Complaint was not calendared and the proposed amended complaint 16 was not filed. 17 constitutes excusable neglect warranting the setting aside of the 18 judgment under Federal Rule of Civil Procedure 60(b) (“Rule 19 60(b)”). 20 (Id.) (Id.) Plaintiff She states that Plaintiff argues this chain of events (Id.) Rule 60(b) states, in relevant part, “on motion and 21 just terms, the court may relieve a party or its legal 22 representative from a final judgment, order, or proceeding for . 23 . . (1) mistake, inadvertence, surprise, or excusable neglect . . 24 . .” 25 party’s neglect of a deadline is excusable “is at bottom an 26 equitable one, taking account of all relevant circumstances 27 surrounding the party’s omission.” 28 Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993). Fed. R. Civ. P. 60(b)(1). The determination of whether a 2 Pioneer Inv. Servs. Co. v. In 1 determining whether the party’s neglect of a deadline is 2 excusable the court considers the following factors: “the danger 3 of prejudice to the [opposing party], the length of the delay and 4 its potential impact on judicial proceedings, the reason for the 5 delay, including whether it was within the reasonable control of 6 the movant, and whether the movant acted in good faith.” 7 Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 8 1997).1 9 Id.; It appears the failure to file the First Amended 10 Complaint was negligent, but the question is whether the neglect 11 was excusable. 12 . . a party's failure to file on time is not “neglect” if the 13 cause is beyond its control. . . . “)(citing Pioneer, 507 U.S. at 14 393–95). 15 negligence. 16 without more, constitutes “excusable” neglect. 17 Servs. Co., 507 U.S. at 398. (“In assessing the culpability of 18 respondents’ counsel, we give little weight to the fact that 19 counsel was experiencing upheaval in his law practice at the time See Briones, 116 F.3d at 382 (“Under Rule 60(b) . Ordinarily, a late filing will not be excused by Id. The court does not see how a change in staff, See Pioneer Inv. 20 1 21 22 23 24 25 26 27 28 Excusable neglect covers negligence on the part of counsel. See Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223 (9th Cir. 2000) (citing Pioneer, 507 U.S. at 395.) Before Pioneer, the Ninth Circuit held that “ignorance of court rules does not constitute excusable neglect and had applied a per se rule against the granting of relief when a party failed to comply with a deadline.” Id. (citations and quotations omitted). After Pioneer, the Ninth Circuit recognized that excusable neglect “covers cases of negligence, carelessness and inadvertent mistake.” Id. (citation omitted). The Pioneer court instructed district courts to apply an equitable test to determine whether the neglect was “excusable” under Rule 60(b)(1). See id. at 1224-25. 3 1 of the bar date.”) 2 Further, it is counsel’s duty to monitor the court’s 3 docket to stay informed of the court’s orders and filing 4 deadlines.2 5 1189, 1193 (9th Cir. 1990) (“[P]arties must monitor the dockets 6 to inform themselves of the entry of orders they may wish to 7 appeal.”). 8 the actions of their lawyers, and alleged attorney malpractice 9 does not usually provide a basis to set aside a judgment pursuant See In re Sweet Transfer & Storage, Inc., 896 F.2d Moreover, “[a]s a general rule, parties are bound by 10 to Rule 60(b)(1).” 11 1260 (9th Cir. 2004) (citation omitted). 12 Casey v. Albertson’s Inc., 362 F.3d 1254, Thus, counsel’s carelessness and error in not checking 13 the court docket to calendar the deadline to file an amended 14 complaint does not constitute “excusable” neglect. 15 Fin. Life Ins. & Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th 16 Cir. 1997) (stating “attorney error is insufficient grounds for 17 relief under both Rule 60(b)(1) and (6)” and 18 ignorance nor carelessness on the part of the litigant or his 19 attorney provide grounds for relief under Rule 60(b)(1).”)) 20 (citations and internal quotations omitted). 21 v. Mineta, 675 F.3d 622, 629-30 (6th Cir. 2012) (finding See Allmerica “[n]either See also Yeschick 22 23 24 25 26 27 28 2 The court notes the minimal burden on counsel to monitor the court’s docket. See Yeschick v. Mineta, 675 F.3d 622, 629 (6th Cir. 2012) (“Now that electronic dockets are widely available, the burden imposed by this affirmative duty is minimal. Attorneys may monitor the docket from the comfort of their offices; they simply need to log-on to the CM/ECF system from a computer.”) (citation omitted). The court further notes that the April 4, 2017, Order (Docket No. 12) was served on counsel’s email address. (See Notice of Electronic Filing for Docket No. 12.) 4 1 counsel’s neglect in checking the docket was not excusable where 2 counsel did not monitor the docket, did not receive notice of the 3 electronic filings because he failed to update his email address 4 on file with the clerk, and did not check the docket until more 5 than one month after he learned that his email address was no 6 longer working.) 7 The court must also consider the length of the delay in 8 the context of the reason for plaintiff’s delay in bringing this 9 motion. See Souliotes v. City of Modesto, Civ. No. 115-00556, 10 2017 WL 1273824, at *3 (E.D. Cal. Jan. 20, 2017) (O’Neill, J.) 11 (explaining “the length of delay in and of itself is not 12 dispositive, but must be considered in the context of the reason 13 for the delay.”). 14 counsel waited five months to ask the court to set aside the 15 judgment and allow her to file her First Amended Complaint. 16 court finds this delay to be significant and weighs against 17 granting plaintiff’s motion. 18 between Plaintiff's missed deadline and his Rule 60 motion to be 19 significant, and [] weighs against granting th[e] motion.”); 20 United States v. 242.93 Acres of Land, Civ. No. 10-1133 BEN 21 (CAB), 2011 WL 13128803, at *2 (S.D. Cal. Apr. 8, 2011) 22 (“Defendants' six-month delay in filing their Answer weighs 23 against a finding of excusable neglect.”). 24 given for the delay--the change in staff, which resulted in the 25 office manager not being on the serve list--does not explain why 26 plaintiff took five months to file the Motion now before the Here, the court entered judgment in May, but See id. 27 28 5 The (finding a “52-day delay Moreover, the reason 1 court.3 2 IT IS THEREFORE ORDERED that plaintiff’s Motion to set 3 aside the judgment under Federal Rule of Civil Procedure 60(b) 4 (Docket No. 15) be, and the same hereby is, DENIED. 5 Dated: November 27, 2017 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Because the court finds that plaintiff’s counsel’s conduct was not excusable neglect, it expresses no opinion as to whether the proposed First Amended Complaint cures the deficiencies of plaintiff’s original Complaint. 6

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