Vanderburgh v. EMC Mortgage Corporation

Filing 44

ORDER by Judge Claudia Wilken granting 33 Motion for Relief from Judgment ; granting 36 Motion to E-file (cwlc1, COURT STAFF) (Filed on 2/9/2010)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SUSAN P. VANDERBURGH, Plaintiff, No. C 09-01361 CW ORDER GRANTING PLAINTIFF'S MOTIONS FOR RELIEF FROM JUDGMENT AND FOR PERMISSION TO E-FILE /

GOLDEN EMPIRE MORTGAGE dba GEM CAPITAL FUNDING and EMC MORTGAGE CORPORATION, Defendants.

Plaintiff moves for relief from the judgment issued on November 25, 2009 and moves for permission to use the Court's electronic case filing system (ECF). the motion for relief from judgment.1 submission on the papers. Defendant EMC opposes only The motions were taken under

Having considered all the papers filed

by the parties, the Court grants the motions for relief from judgment and for permission to use the ECF system. On September 30, 2009, the Court issued an Order dismissing Plaintiff's complaint with leave to amend within three weeks from the date of the order. Plaintiff did not file an amended complaint On November 5, 2009, EMC filed,

within the three week period.

under Federal Rule of Civil Procedure 41(b), a motion to dismiss the complaint with prejudice on the ground that Plaintiff had failed to comply with an order of the Court. On November 25, 2009, On the

the Court issued an Order granting EMC's motion to dismiss. same date, judgment was entered in favor of EMC and against Plaintiff.

Claims against Defendant Golden Empire Mortgage were previously dismissed for failure to prosecute.

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On December 9, 2009, Plaintiff filed the instant motions. Plaintiff indicates that, due to faulty mail service, she did not receive the Court's September 30 and November 25 Orders and only became aware of them when she used a friend's account to access the Court's ECF system. Plaintiff indicates that her faulty mail

delivery problem will be remedied once she has access to the Court's ECF system. EMC opposes the motion on the ground that it

was not filed within the ten-day period for filing motions under Federal Rule of Procedure 59(e) and because Plaintiff failed to provide any basis for granting the motion. Prior to December 1, 2009, Rule 6 of the Federal Rules of Civil Procedure provided that, if the period for filing specified under the Rules was less than eleven days, intermediate Saturdays, Sundays and legal holidays were to be excluded. On December 1,

2009, Rule 6 was amended to provide that every day was to be counted in computing any time period specified under the Rules. Because the Court's judgment was entered on November 25, 2009, Saturdays, Sundays and legal holidays are excluded from counting the ten-day deadline for filing a motion under Rule 59. Excluding

the intervening Saturdays, Sundays and the Thanksgiving holiday, Plaintiff's Rule 59 motion was filed within the ten-day period. Rule 59(e) motions are interpreted as motions for reconsideration, and are appropriate if the district court "(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J,

Multnomah County, Oregon v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), cert. denied, 512 U.S. 1236 (1994). 2

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Although Plaintiff has not argued that there is newly discovered evidence, an intervening change in the law or clear error, because it would be inequitable to deny Plaintiff a decision on the merits of her claims because she did not receive the Court's Orders, the Court will grant the motion and will vacate the judgment. Within three weeks from the date of this order,

Plaintiff must file an amended complaint in accordance with the instructions provided in the September 30, 2009 Order. If

Plaintiff does not file an amended complaint within this time period, her complaint will be dismissed with prejudice. Plaintiff has provided a declaration that she has read the requirements for e-filing provided in General Order 45 and that she is able to comply with those requirements. Therefore, her motion

for permission to use the ECF system is granted. CONCLUSION Accordingly, Plaintiff's motion for relief from judgment is granted. The judgment is vacated and the case is re-opened.

Plaintiff must file an amended complaint in accordance with the Court's September 30, 2009 Order within three weeks from the date of this Order. If Plaintiff does not file an amended complaint

within this time period, her complaint will be dismissed with prejudice. Plaintiff's motion for permission to use the Court's

ECF system is granted. IT IS SO ORDERED.

Dated: February 9, 2010

CLAUDIA WILKEN United States District Judge

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: February 9, 2010

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SUSAN P. VANDERBURGH, Plaintiff, v. GOLDEN EMPIRE MORTGAGE et al, Defendant. /

Case Number: CV09-01361 CW CERTIFICATE OF SERVICE

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 February 9, 2010, 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.

Susan P. Vanderburgh 3525 Del Mar Heights Road, #138 San Diego, CA 92130

Richard W. Wieking, Clerk By: Ronnie Hersler, Deputy Clerk

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