Zivanic v. Washington Mutual Bank, F.A. et al

Filing 27

ORDER by Judge Samuel Conti denying 24 Motion to Set Aside Order Dismissing Case (sclc2, COURT STAFF) (Filed on 12/2/2010)

Zivanic v. Washington Mutual Bank, F.A. et al

Doc. 27

1 2 3 4 5 6 7 8 9 10 YVONNE ZIVANIC, ) ) Plaintiff, ) v. ) ) WASHINGTON MUTUAL BANK, N.A.; ERIC ) DIPPEL; LISA DIPPEL; JPMORGAN ) CHASE BANK, N.A.; DEUTSCHE BANK ) NATIONAL TRUST COMPANY; QUALITY ) LOAN SERVICE CORPORATION; and DOES ) 1-50, inclusive, ) ) Defendants. ) ) Case No. 10-737 SC ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF UNDER RULE 60(b) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

For the Northern District of California

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On February 26, 2010, Defendants JP Morgan Chase Bank, N.A., and Deutsche Bank National Trust Company (collectively, "Defendants") filed a motion to dismiss. ECF No. 4. On June 9,

2010, the Court issued a nineteen-page order granting in part and denying in part the motion to dismiss. Order"). ECF No. 20 ("June 9, 2010

The order concluded by stating that "Plaintiff Yvonne

Zivanic shall submit an amended complaint within thirty (30) days from the date of this Order. Failure to do so will result in Id. at 19. Plaintiff

dismissal of her case in its entirety."

Yvonne Zivanic ("Plaintiff") failed to file an amended complaint within thirty days, or thereafter. dismissed Plaintiff's case. On July 27, 2010, the Court

ECF No. 22 ("July 27, 2010 Order").

Presently before the Court is Plaintiff's Motion for Relief

Dockets.Justia.com

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For the Northern District of California

Under Rule 60(b).

ECF No. 24 ("Mot.").

Plaintiff seeks to set Defendants opposed the

aside the order dismissing her case. motion. ECF No. 25 ("Opp'n").

Id.

For the reasons stated herein, the

Court DENIES Plaintiff's Motion for Relief. Under Federal Rule of Civil Procedure 60(b)(1), a district court may grant relief from a judgment or order on the grounds of "mistake, inadvertence, surprise, or excusable neglect." The

determination of whether neglect is excusable is "at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Pioneer Inv. Servs. Co. v.

United States District Court

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Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993) ("Pioneer"). District courts consider: "(1) the danger of

prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith." Bateman v.

U.S. Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000) (citing Pioneer, 507 U.S. at 395). Here, Plaintiff's attorney admits that he was negligent in handling Plaintiff's case. Henrioulle Decl. ¶ 10.1 He declares

that he and other members of his office "have become overwhelmed by the pressure of the workload especially as the volume of foreclosures has increased during the past five or six months." Id. ¶ 6. He states that the pressure of other cases, including

both foreclosure and family law cases, have delayed until now his effort to obtain relief under Rule 60(b)(1). Id. ¶ 8.

However, an attorney's press of business by itself is
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Stevan Henrioulle ("Henrioulle"), partner of the Law Office of Uy & Henrioulle, filed a declaration in support of the motion. ECF No. 24-2. 2

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For the Northern District of California

generally no excuse.

See Pioneer, 507 U.S. at 396 ("In assessing

the culpability of . . . counsel, we give little weight to the fact that counsel was experiencing upheaval in his law practice . . . ."). As a general rule, parties are bound by the actions of their

attorneys, and attorney error or attorney malpractice does not constitute excusable neglect under Rule 60(b)(1). Casey v.

Albertson's Inc., 362 F.3d 1254, 1260 (9th Cir. 2004). The Court's June 9, 2010 Order could not have been clearer in requiring an amended complaint to be filed within thirty days. The

error here was not a failure to appreciate the consequences of an ambiguous rule, but a failure to read the concluding lines of the Court's order explaining to Plaintiff and her counsel the next step to be taken as a result of the Court's ruling on Defendants' motion to dismiss. The Court dismissed Plaintiff's case almost three

United States District Court

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weeks after her deadline to file an amended complaint expired. While the negligence of Plaintiff's attorney may provide the basis for a malpractice action, it does not constitute excusable neglect. Furthermore, Plaintiff's attorney waited for three months, until October 27, 2010, before filing the present motion to set aside the order dismissing Plaintiff's case. The Court finds that

Defendants would be prejudiced if the Court were to re-open a foreclosure case that was dismissed in July. While there is no

evidence of bad faith on Plaintiff's part, having considered the reasons for the delay, the danger of prejudice to Defendants, and the length of the delay, the Court DENIES Plaintiff Yvonne Zivanic's Motion for Relief Under Rule 60(b). /// ///

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The Law Office of Uy & Henrioulle shall mail a copy of this Order directly to Yvonne Zivanic, and file a Proof of Service with the Court no later than five (5) days from the date of this Order.

IT IS SO ORDERED.

Dated: December 2, 2010 UNITED STATES DISTRICT JUDGE

United States District Court

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