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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ELIZABETH A. WILLIS,

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v.
JP MORGAN CHASE BANK, N.A.;
and DOES 1-20 inclusive,

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MEMORANDUM AND ORDER RE: MOTION
TO SET ASIDE JUDGMENT

Defendants.

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2:17-00366 WBS AC

Plaintiff,

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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

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court dismissed plaintiff’s Complaint without prejudice to

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refiling an amended complaint within twenty days from the date

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the Order was signed.

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(Docket No. 12).)

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closed based on plaintiff’s failure to file an amended complaint

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by the court’s deadline.

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(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

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reopen the judgment because she made an inadvertent error that

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led to her failure to file the proposed First Amended Complaint

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by the court ordered deadline. (Pl.’s Mot. at 4.)

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states she was out of town on a family emergency when the court

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granted defendant’s Motion to dismiss.

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because of a change in staff, the office manager was not on the

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“serve list” and thus, the deadline to file the First Amended

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Complaint was not calendared and the proposed amended complaint

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was not filed.

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constitutes excusable neglect warranting the setting aside of the

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judgment under Federal Rule of Civil Procedure 60(b) (“Rule

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60(b)”).

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(Id.)

(Id.)

Plaintiff

She states that

Plaintiff argues this chain of events

(Id.)
Rule 60(b) states, in relevant part, “on motion and

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just terms, the court may relieve a party or its legal

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representative from a final judgment, order, or proceeding for .

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. . (1) mistake, inadvertence, surprise, or excusable neglect . .

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. .”

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party’s neglect of a deadline is excusable “is at bottom an

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equitable one, taking account of all relevant circumstances

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surrounding the party’s omission.”

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Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993).

Fed. R. Civ. P. 60(b)(1).

The determination of whether a

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Pioneer Inv. Servs. Co. v.
In

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determining whether the party’s neglect of a deadline is

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excusable the court considers the following factors: “the danger

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of prejudice to the [opposing party], the length of the delay and

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its potential impact on judicial proceedings, the reason for the

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delay, including whether it was within the reasonable control of

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the movant, and whether the movant acted in good faith.”

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Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.

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1997).1

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Id.;

It appears the failure to file the First Amended

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Complaint was negligent, but the question is whether the neglect

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was excusable.

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. . a party's failure to file on time is not “neglect” if the

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cause is beyond its control. . . . “)(citing Pioneer, 507 U.S. at

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393–95).

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negligence.

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without more, constitutes “excusable” neglect.

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Servs. Co., 507 U.S. at 398. (“In assessing the culpability of

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respondents’ counsel, we give little weight to the fact that

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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.

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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.
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of the bar date.”)

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Further, it is counsel’s duty to monitor the court’s

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docket to stay informed of the court’s orders and filing

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deadlines.2

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1189, 1193 (9th Cir. 1990) (“[P]arties must monitor the dockets

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to inform themselves of the entry of orders they may wish to

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appeal.”).

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the actions of their lawyers, and alleged attorney malpractice

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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

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to Rule 60(b)(1).”

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1260 (9th Cir. 2004) (citation omitted).

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Casey v. Albertson’s Inc., 362 F.3d 1254,

Thus, counsel’s carelessness and error in not checking

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the court docket to calendar the deadline to file an amended

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complaint does not constitute “excusable” neglect.

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Fin. Life Ins. & Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th

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Cir. 1997) (stating “attorney error is insufficient grounds for

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relief under both Rule 60(b)(1) and (6)” and

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ignorance nor carelessness on the part of the litigant or his

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attorney provide grounds for relief under Rule 60(b)(1).”))

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(citations and internal quotations omitted).

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v. Mineta, 675 F.3d 622, 629-30 (6th Cir. 2012) (finding

See Allmerica

“[n]either

See also Yeschick

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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.)
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counsel’s neglect in checking the docket was not excusable where

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counsel did not monitor the docket, did not receive notice of the

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electronic filings because he failed to update his email address

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on file with the clerk, and did not check the docket until more

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than one month after he learned that his email address was no

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longer working.)

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The court must also consider the length of the delay in

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the context of the reason for plaintiff’s delay in bringing this

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motion.

See Souliotes v. City of Modesto, Civ. No. 115-00556,

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2017 WL 1273824, at *3 (E.D. Cal. Jan. 20, 2017) (O’Neill, J.)

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(explaining “the length of delay in and of itself is not

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dispositive, but must be considered in the context of the reason

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for the delay.”).

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counsel waited five months to ask the court to set aside the

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judgment and allow her to file her First Amended Complaint.

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court finds this delay to be significant and weighs against

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granting plaintiff’s motion.

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between Plaintiff's missed deadline and his Rule 60 motion to be

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significant, and [] weighs against granting th[e] motion.”);

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United States v. 242.93 Acres of Land, Civ. No. 10-1133 BEN

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(CAB), 2011 WL 13128803, at *2 (S.D. Cal. Apr. 8, 2011)

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(“Defendants' six-month delay in filing their Answer weighs

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against a finding of excusable neglect.”).

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given for the delay--the change in staff, which resulted in the

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office manager not being on the serve list--does not explain why

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plaintiff took five months to file the Motion now before the

Here, the court entered judgment in May, but

See id.

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The

(finding a “52-day delay

Moreover, the reason

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court.3

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IT IS THEREFORE ORDERED that plaintiff’s Motion to set

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aside the judgment under Federal Rule of Civil Procedure 60(b)

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(Docket No. 15) be, and the same hereby is, DENIED.

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Dated:

November 27, 2017

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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.
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