Campbell v. Brennan

Filing 73

ORDER by Magistrate Judge Jacqueline Scott Corley granting 69 Motion to Set Aside Judgment; denying as moot 71 Motion for New Trial. (ahm, COURT STAFF) (Filed on 7/17/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ELMER E CAMPBELL, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No.15-cv-03582-JSC ORDER RE: PLAINTIFF’S POSTJUDGMENT MOTIONS v. MEGAN J. BRENNAN, Re: Dkt. Nos. 69 & 71 Defendant. 12 13 Plaintiff Elmer Campbell brought this pro se employment discrimination action against his 14 former employer Defendant the United States Postal Service alleging claims for retaliation and 15 discrimination under the Rehabilitation Act and Title VII of the Civil Rights Act. The Court 16 granted Defendant’s unopposed motion for summary judgment after granting Plaintiff an 17 extension of time to respond to the motion and he failed to do so. (Dkt. No. 62.) Plaintiff’s 18 Motion for Relief from Judgment under Federal Rule of Civil Procedure 60(b)(1) is now pending 19 before the Court as is Plaintiff’s subsequently filed motion for new trial. (Dkt. Nos. 69 & 71.) 20 After carefully considering the arguments and briefing submitted, the Court concludes that oral 21 argument is unnecessary, see Civ. L.R. 7-1(b), VACATES the July 27, 2017 hearing and 22 GRANTS Plaintiff’s Rule 60(b)(1) motion for the reasons set forth below. 23 24 BACKGROUND Plaintiff filed this action in August 2015 alleging claims of disability discrimination and 25 failure to accommodate. Plaintiff thereafter amended his complaint five times through either 26 stipulation or following an order on one of Defendant’s three motions to dismiss. Throughout this 27 time, Plaintiff represented himself pro se with his friend Hank Royal, a non-attorney, providing 28 informal “assistance.” (Dkt. No. 3.) Plaintiff was cautioned that Mr. Royal as a non-attorney 1 could not represent him and was referred to the free Legal Help Center for assistance with his case 2 on multiple occasions. (Dkt. Nos. 5, 29, 38.) On June 10, 2016, Plaintiff filed his fifth amended complaint which pled claims for: (1) 3 4 disability discrimination under the Rehabilitation Act, (2) retaliation under the Rehabilitation Act; 5 and (3) retaliation under Title VII. (Dkt. No. 50.) Defendant thereafter answered. (Dkt. No. 51.) 6 Defendant then sought to depose Plaintiff and required two extensions of time to do so because 7 Plaintiff initially failed to cooperate in scheduling his deposition, and then when he did appear, he 8 was confused about whether he had an attorney. (Dkt. Nos. 54 & 56.) Plaintiff later clarified that 9 he did not have an attorney and his deposition was taken on February 24, 2017. (Dkt. No. 57 at 10 3.1) On April 20, 2017, Defendant filed a motion for summary judgment in accordance with the United States District Court Northern District of California 11 12 Pretrial Order filed nearly a year earlier. (Dkt. No. 60.) Plaintiff failed to file a timely opposition 13 and the Court sua sponte granted him an extension of time, ordering Plaintiff to file his response to 14 the motion for summary judgment by May 23, 2017. (Dkt. No. 62.) Plaintiff failed to do so, and 15 instead, on May 24, 2017, Plaintiff filed an “ex parte motion” which sought a 60 day extension of 16 time to respond to the motion for summary judgment because “I had not received proof of service 17 for motion for summary judgement [sic] until May 23, 2017.” (Dkt. No. 63.) The Court declined 18 to grant Plaintiff a further extension of time to respond to the motion for summary judgment. 19 Although the filing and hearing dates for the motion for summary judgment had been set more 20 than a year prior, Plaintiff had apparently failed to check his PO Box for nearly a month. The 21 Court concluded that Plaintiff had not shown good cause for failing to file his opposition. The 22 Court noted that it and government counsel had been exceedingly patient with Plaintiff allowing 23 him multiple opportunities to amend his pleadings to cure his failure to plead all of his claims in 24 each iteration of his complaint and the Court had referred Plaintiff to the free Legal Help Center 25 for assistance with his case on multiple occasions. The Court then considered the merits of the 26 motion for summary judgment and granted it in full. (Dkt. No. 67.) 27 1 28 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents. 2 1 A week later, Plaintiff filed the now pending motion for relief from judgment under 2 Federal Rule of Civil Procedure 60(b)(1). (Dkt. No. 69.) The government opposes the motion. 3 (Dkt. No. 70.) Plaintiff then filed a motion for new trial under Federal Rule of Civil Procedure 59. 4 (Dkt. No. 71.) DISCUSSION 5 6 Rule 60(b) provides for reconsideration only upon a showing of: (1) mistake, inadvertence, 7 surprise or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could 8 not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud by the 9 adverse party; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief. See Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 11 United States District Court Northern District of California 10 1263 (9th Cir. 1993). Rule 60(b) provides for extraordinary relief and may be invoked only upon 12 a showing of exceptional circumstances. Engleson v. Burlington Northern Railroad Co., 972 F.2d 13 1038, 1044 (9th Cir. 1992). 14 Plaintiff seeks relief under the first prong for excusable neglect. The determination 15 whether relief should be granted under Rule 60(b)(1) “depends on at least four factors: (1) the 16 danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on 17 the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” 18 Bateman v. United States Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000) (adopting standard 19 to determine excusable neglect as set forth in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 20 507 U.S. 380, 395 (1993)). The court may consider the Pioneer factors without discussing how 21 much weight it gives to each. M.D. v. Newport-Mesa Unified Sch. Dist., 840 F.3d 640, 643 (9th 22 Cir. 2016) (per curiam). 23 Plaintiff contends that his failure to file an opposition to the motion for summary judgment 24 should be excused based on a finding of excusable neglect. In particular, Plaintiff alleges that he 25 failed to respond to the motion for summary judgment because Mr. Hank Royal who the “court 26 had granted [] the privilege of being intermediate to Plaintiff because Plaintiff had no viable 27 means to retrieve and or receive the courts [sic] correspondence in a timely manner[,]” had entered 28 hospice in October 2016 and was near death. (Dkt. No. 69 at 2.) Plaintiff maintains that his 3 1 mobility disability impeded him from checking his own mail and that he relied on Mr. Royal to do 2 so. 3 The Court never granted Mr. Royal, a non-attorney, any status in this lawsuit; rather, the Court repeatedly stated that Plaintiff was proceeding pro se and that he should visit the Legal Help 5 Desk for free legal assistance. While the Court mailed copies of orders to Mr. Royal as a courtesy 6 to Plaintiff, it also served Plaintiff with a copy of orders at his PO Box which is the address on file 7 with the Court. (Dkt. Nos. 5-1, 12-1, 17-1, 23-1, 29-1, 37-1, 38-1, 48-1, 54-1 and 62-1.) 8 Defendant likewise served Plaintiff with a copy of the motion for summary judgment at Plaintiff’s 9 PO Box. (Dkt. No. 60-16.) Further, Plaintiff never notified the Court that his address had changed 10 nor did he seek any sort of relief from the Court based on an inability to proceed with the litigation 11 United States District Court Northern District of California 4 due to Mr. Royal’s incapacitation. See Civ. L.R. 3-11(a) (requires parties to “promptly file with 12 the Court and serve upon all opposing parties a Notice of Change of Address specifying the new 13 address”). Nonetheless, because the reason for the delay is just one of the four factors that the 14 Court must consider in deciding a Rule 60(b)(1) motion, the Court turns to the other factors: 15 prejudice to the opposing party, the length of the delay, and whether the movant acted in good 16 faith. See Bateman, 231 F.3d at 1224 (holding that the district court abused its discretion when it 17 only considered the reason for the delay and not the other three factors). 18 Defendant’s opposition brief does not point to any prejudice as a result of Plaintiff’s failure 19 to oppose the motion for summary judgment, and instead, focuses on whether Plaintiff has shown 20 excusable neglect and whether Plaintiff was treated fairly, which Defendant insists he was. The 21 Court agrees that defense counsel has treated Plaintiff fairly, and in fact, has provided extra 22 courtesies to Plaintiff as a pro se litigant. However, this is not the relevant inquiry—the Court 23 must look to the prejudice to Defendant. While delay of any kind may be prejudicial, the delay 24 here is not substantial. As in Bateman, where the plaintiff likewise failed to file a timely 25 opposition to the motion for summary judgment, the Defendant here “would have lost a quick 26 victory and, should it ultimately have lost the summary judgment motion on the merits, would 27 have had to reschedule the trial date. But such prejudice is insufficient to justify denial of relief 28 under Rule 60(b)(1).” Id. at 1225. 4 1 Likewise, the length of the delay and the potential impact on judicial proceedings is 2 minimal. Plaintiff filed his Rule 60(b)(1) motion 10 days after judgment was entered and while it 3 will be necessary to reset the trial date should Defendant’s motion for summary judgment be 4 denied, this factor alone is not enough. See id. at 1225; M.D., 840 F.3d at 643 (collecting cases 5 holding that minimal delay weighs in favor of a finding of excusable neglect). 6 The final factor, whether the movant acted in good faith, also weighs in Plaintiff’s favor. 7 Although Plaintiff’s pursuit of his claims has been less than expedient, he is both pro se and 8 disabled. Further, once Plaintiff finally checked his PO Box and discovered that he had failed to 9 file an opposition to Defendant’s motion for summary judgment and judgment had been entered in Defendant’s favor, he promptly moved for relief. Under these circumstances, “there is no 11 United States District Court Northern District of California 10 evidence that [Plaintiff] acted with anything less than good faith. His errors resulted from 12 negligence and carelessness, not from deviousness or willfulness.” Lemoge v. United States, 587 13 F.3d 1188, 1197 (9th Cir. 2009) (internal citation omitted). 14 In sum, while the reason for the delay weighs against a finding of excusable neglect, the 15 neglect here is not so egregious as to outweigh the other factors. See M.D., 840 F.3d at 643 16 (reversing district court’s denial of a Rule 60(b)(1) motion where counsel misread a docket entry 17 and made a calendaring error which resulted in the untimely filing of an amended complaint). 18 Accordingly, the Court concludes that on balance Plaintiff has shown that his failure to file an 19 opposition to Defendant’s motion for summary judgment was based on excusable neglect and that 20 the judgment should be set aside under Rule 60(b)(1). 21 22 23 24 25 26 CONCLUSION For the reasons stated above, Plaintiff’s Rule 60(b)(1) motion is GRANTED. (Dkt. No. 69.) Plaintiff’s motion for a new trial is therefore DENIED AS MOOT. (Dkt. No. 71.) The Court VACATES its Order granting summary judgment and the entry of judgment in Defendant’s favor. (Dkt. Nos. 67 & 68.) The Clerk shall reopen the action. Plaintiff’s opposition to the previously filed motion for summary judgment is due 27 August 18, 2017. Plaintiff must file his opposition brief by this date. If he fails to do so, 28 judgment will again be entered in Defendant’s favor. Defendant may file a reply to any 5 1 opposition by September 1, 2017. Upon completion of the briefing, the Court will take the matter 2 under submission and notify the parties if oral argument is necessary. Plaintiff is reminded of his 3 responsibility as a party to ensure that he is aware of any filings in this action and thus must 4 make arrangements to regularly check his mail. 5 Finally, the Court again strongly encourages Plaintiff to seek free assistance from the Northern District’s Pro Se Help Desk, United States Courthouse, San Francisco, 450 Golden Gate 7 Avenue, 15th Floor, Room 2796, San Francisco, CA 94102 or the Help Desk at the Oakland 8 Federal Courthouse, 1301 Clay Street, 4th Floor, Room 470S, Oakland, CA 94612. Plaintiff can 9 make an appointment in person or by calling 415-782-8982. 10 This Order disposes of Docket Nos. 69 & 71. 11 United States District Court Northern District of California 6 IT IS SO ORDERED. 12 Dated: July 17, 2017 13 14 JACQUELINE SCOTT CORLEY United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ELMER E CAMPBELL, Case No. 15-cv-03582-JSC Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 MEGAN J. BRENNAN, Defendant. United States District Court Northern District of California 11 12 13 14 15 16 17 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on July 17, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 18 19 20 Elmer E Campbell P.O. Box 30361 Oakland, CA 94604 21 22 Dated: July 17, 2017 23 24 25 Susan Y. Soong Clerk, United States District Court 26 27 28 By:________________________ Ada Means, Deputy Clerk to the Honorable JACQUELINE SCOTT CORLEY 7

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