Brantley et al v. Boyd et al

Filing 265

ORDER by Judge Samuel Conti granting 262 Motion for Relief from Dismissal (sclc2, COURT STAFF) (Filed on 12/16/2011) (Additional attachment(s) added on 12/16/2011: # 1 proof of service) (tdm, COURT STAFF).

1
2

IN THE UNITED STATES DISTRICT COURT

3

FOR THE NORTHERN DISTRICT OF CALIFORNIA

4
5
6

LARRY TYRONE BRANTLEY, SR.; and
ELLEN BRANTLEY,
Plaintiffs,

7

v.

8
9

United States District Court

For the Northern District of California

10

GARRETT BOYD; MODO REALTY, INC.;
ROYAL CROWN MORTGAGE, INC.;
SERGEI KLYAZMIN; and ACADEMY
ESCROW,

11
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 07-6139 SC
ORDER GRANTING PLAINTIFFS'
MOTION FOR RELIEF FROM
DISMISSAL

12
13

Before the Court is a Motion for Relief from Dismissal under

14

Federal Rule of Civil Procedure 60 filed by Plaintiffs Larry

15

Brantley and Ellen Brantley ("Plaintiffs" or "the Brantleys").

16

No. 262 ("Mot.").

17

Plaintiffs' Motion.

18

ECF

For the following reasons, the Court GRANTS

On August 2, 2011, Plaintiffs' former counsel Dorothy Guillory

19

("Guillory") filed a motion to withdraw as counsel.

20

In support of her motion, Guillory submitted a brief and an

21

affidavit explaining that a conflict of interest and irreconcilable

22

differences had arisen that precluded her from continuing to

23

represent Plaintiffs.

24

("Guillory Decl.").

25

certified mail informing them in bold type that the Court would

26

hold a hearing on the motion to withdraw on September 9, 2011, and

27

that "[t]he Court requires your presence at this hearing."

28

237.

ECF No. 234.

ECF Nos. 235 ("M. of P. & A."), 236

Guillory also sent Plaintiffs a letter via

ECF No.

1

On September 9, 2011, the Court held a hearing on the

2

Guillory's motion.

Plaintiffs failed to attend.

Guillory

3

presented the Court with a certified mail receipt signed by

4

Plaintiffs demonstrating that they received her letter.

5

stated that she had spoken with Plaintiffs by telephone the morning

6

of the hearing to remind them to appear, but that Plaintiffs denied

7

any knowledge of the hearing and declared that they would not

8

attend.

9

hearing on the Motion until November 18, 2011.

Guillory

Due to Plaintiffs' absence, the Court continued the
The Court issued,

United States District Court

For the Northern District of California

10

and served upon the Brantleys, an order to show cause instructing

11

them that if they did not appear at the November 18 hearing their

12

case would be dismissed.

13

at the hearing on November 18, 2011.

14

motion to withdraw as Plaintiff's lawyer, and the Court dismissed

15

the case.

16

ECF No. 252.

Plaintiffs failed to appear

The Court granted Guillory's

ECF No. 259.

Plaintiffs now ask the Court to set aside the order of

17

dismissal.

18

that they arrived at the November 18 hearing fifteen minutes late

19

because of a ticketing malfunction at the subway station and

20

because of confusion about where the proper courtroom was located

21

once they reached the courthouse.

22

Court to find that their failure to appear was due to excusable

23

neglect.

24

Mot. at 2.

They have submitted declarations stating

ECF Nos. 263, 264.

They ask the

Mot. at 3.

Under Federal Rule of Civil Procedure 60(b)(1), " the court

25

may relieve a party or its legal representative from a final

26

judgment, order, or proceeding [due to] mistake, inadvertence,

27

surprise, or excusable neglect."

The Court finds Plaintiffs'

28

2

1

failure to arrive at the November 18 hearing on time excusable

2

neglect and therefore VACATES its order of dismissal.

3

The Court will provide Plaintiffs one final opportunity to

4

appear personally before the Court to show cause why their case

5

should not be dismissed for failure to prosecute.

6

Plaintiffs are ORDERED to appear personally before the Court on

7

January 27, 2012 at 10:00 a.m. in Courtroom 1, on the 17th floor,

8

U.S. Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102.

9

If Plaintiffs do not appear on time as ordered, the Court will

Accordingly,

United States District Court

For the Northern District of California

10

dismiss their case with prejudice and will not entertain a future

11

motion for relief.

12
13

IT IS SO ORDERED.

14
15
16

Dated: December 16, 2011
UNITED STATES DISTRICT JUDGE

17
18
19
20
21
22
23
24
25
26
27
28

3