Liberty Mutual Insurance Company v. UPA California et al

Filing 45

AMENDED ORDER GRANTING UPA DEFENDANTS' REQUEST FOR RELIEF. Signed by Magistrate Judge Bernard Zimmerman on 11/13/2008. (bzsec, COURT STAFF) (Filed on 11/13/2008)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) LIBERTY MUTUAL INSURANCE CO., a Massachusetts Corp., ) ) Plaintiff(s), ) ) v. ) ) UPA CALIFORNIA, a California) general partnership, et al.,) ) ) ) Defendant(s). ) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA No. C08-0611 BZ AMENDED ORDER GRANTING UPA DEFENDANTS' REQUEST FOR RELIEF Before the court is the motion of the UPA defendants for relief pursuant to Rule 60(b)(1) from the consequences of their failure to file a timely opposition to Liberty Mutual's motion to dismiss their counterclaims. The UPA defendants' motion for relief was filed on October 22, 2008, approximately 12 days after its opposition was due. The due date was set by The court order which shortened the usual opposition time. order was filed and served electronically. The UPA defendants contend their late filing constituted excusable neglect and support their position with a declaration of counsel. He explains the difficulties he has had accessing the electronic 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 case filing system from his Apple computer, difficulties that were compounded in recent months because he has had trouble receiving e-mails and has changed internet service providers to try to resolve his e-mail problems. Counsel also attests he attempted to avoid this motion by stipulation and Liberty's counsel would not accommodate him. In its opposition, Liberty Mutual claims that the problems that defense counsel was experiencing were the sort of administrative difficulties which do not constitute excusable neglect and asserts that it would be prejudiced if the motion is granted because that would delay the hearing of their motion to dismiss by a few weeks. However, the prejudice Liberty Mutual contends it will suffer is easily cured. Accordingly, the court finds as follows: 1. There is no need for a reply or oral argument and the court vacates the hearing presently scheduled for December 3, 2008 on this motion. 2. The court finds that there was excusable neglect such that the UPA defendants are GRANTED leave to file the opposition which they filed on November 10, 2008. shall be filed by Thursday, November 20, 2008. The reply Liberty Mutual's motion to dismiss will heard on Wednesday, December 3, 2008 at 10:00 a.m., only 7 days later than originally noticed. Dated: November 13, 2008 Bernard Zimmerman United States Magistrate Judge G:\BZALL\-BZCASES\LIBERTY MUTUAL V. UPA CALIFORNIA\AMENDED ORDER GRANTING DEF'S REQST. FOR RELIEF.wpd 2

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