Edwards et al v. Reynolds et al

Filing 73

ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION; VACATING DECEMBER 1, 2009 ORDER; SETTING ASIDE JUDGMENT; SETTING BRIEFING SCHEDULE ON MOTION FOR SUMMARY JUDGMENT; DENYING AS PREMATURE DEFENDANTS' MOTION FOR AWARD OF ATTORNEYS FEES; V ACATING FEBRUARY 13, 2009 HEARING. The Court's December 1, 2008 order granting defendants' motion for summary judgment is vacated, and the judgment entered on December 1, 2008 is set aside. No later than February 27, 2009, plaintiffs shall file their opposition to defendants' motion for summary judgment; no later than March 13, 2009, defendants shall file a reply to plaintiffs' opposition. A hearing on defendants' motion for summary judgment will be conducted on April 3, 2009, at 9:00 a.m. Defendants' Motion for Award of Attorney's Fees is hereby denied without prejudice. Signed by Judge Maxine M. Chesney on February 5, 2009. (mmclc1, COURT STAFF) (Filed on 2/5/2009)

1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court is plaintiffs' Motion for Reconsideration, filed December 15, 2008. Defendants have filed opposition, to which plaintiffs have replied. Having read and considered the papers filed in support of and in opposition to the motion, the Court deems the matter suitable for decision on the papers submitted, VACATES the hearing scheduled for February 13, 2009, and rules as follows: 1. Plaintiffs, who are proceeding pro se, have sufficiently demonstrated that plaintiffs' failure to file opposition to defendants' motion for summary judgment was the result of excusable neglect. Plaintiffs filed the instant motion only two weeks after entry of judgment and have explained they did not file timely opposition to defendants' motion for summary judgment because of health problems and the need to address two separate foreclosure actions. Further, there is no indication that defendants will be prejudiced by this relatively brief delay in the filing of plaintiffs' opposition. Under such circumstances, the v. MICHAEL J. REYNOLDS, et al., Defendants / United States District Court IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

RANDALL L. EDWARDS, BETTY SUE EDWARDS, Plaintiffs,

No. C-07-4710 MMC ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION; VACATING DECEMBER 1, 2009 ORDER; SETTING ASIDE JUDGMENT; SETTING BRIEFING SCHEDULE ON MOTION FOR SUMMARY JUDGMENT; DENYING AS PREMATURE DEFENDANTS' MOTION FOR AWARD OF ATTORNEY'S FEES; VACATING FEBRUARY 13, 2009 HEARING

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Court finds it appropriate to afford plaintiffs the relief sought, and plaintiffs' motion for reconsideration is hereby GRANTED. See Laurino v. Syringa General Hospital, 279 F.3d 750, 753-54 (9th Cir. 2002) (holding plaintiff entitled to reconsideration of order dismissing case, where "period of delay [was] not unreasonable," plaintiff's "errors resulted from negligence and carelessness, not deviousness or willfulness," and there was no evidence of "prejudice" to defendant). Accordingly, the Court's December 1, 2008 order granting defendants' motion for summary judgment is hereby VACATED, and the judgment entered on December 1, 2008 is hereby SET ASIDE. 2. The Court hereby sets the following briefing schedule on defendants' motion for summary judgment: a. No later than February 27, 2009, plaintiffs shall file their opposition to defendants' motion for summary judgment. If, however, plaintiffs intend to rely solely on the showing made in their motion for reconsideration, plaintiffs need not file any additional papers in opposition to defendants' motion for summary judgment, and, in such instance, the Court will consider plaintiffs' motion for reconsideration to be plaintiffs' opposition to defendants' motion for summary judgment. b. No later than March 13, 2009, defendants shall file a reply to plaintiffs' opposition. c. A hearing on defendants' motion for summary judgment will be conducted on April 3, 2009, at 9:00 a.m. All parties, either in person or through counsel, are ORDERED to attend the April 3, 2009 hearing, unless the parties are advised by the Court that the hearing has been vacated. 3. Because the December 1, 2008 judgment has been set aside, defendants' Motion for Award of Attorney's Fees, filed December 11, 2008, is hereby DENIED without prejudice. IT IS SO ORDERED. Dated: February 5, 2009 MAXINE M. CHESNEY United States District Judge 2