J & J Sports Productions, Inc v. Looney et al

Filing 34

ORDER GRANTING PLAINTIFFS 33 MOTION TO REINSTATE CASE. Signed by Judge Claudia Wilken on 12/16/2011. (ndr, COURT STAFF) (Filed on 12/16/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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J & J SPORTS PRODUCTIONS, INC.,

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Plaintiff,

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United States District Court
For the Northern District of California

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ORDER GRANTING
PLAINTIFF’S MOTION
TO REINSTATE CASE
(Docket No. 33)

v.
KENNETH TEDFORD LOONEY,
individually and doing business
as Looney’s Smokehouse, also
known as Looney’s Smokehouse Bar
B Que; and HTWOOO, LLC, an
unknown business entity, doing
business as Looney’s Smokehouse,
also known as Looney’s Smokehouse
Bar B Que,

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No. C 11-2093 CW

Defendants.
________________________________/

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Plaintiff J & J Sports Productions, Inc. moves for relief

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from this Court’s Order of November 3, 2011 dismissing this case

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for failure to prosecute and requests that this case be

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reinstated.

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The Court takes the motion under submission on the papers and

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GRANTS it.

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No opposition to Plaintiff’s motion has been filed.

BACKGROUND
Plaintiff filed the instant action on April 28, 2011 against

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Defendants Kenneth Tedford Looney and Htwoo, LLC.

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2011, the Clerk entered default as to Defendant Htwoo, LLC.

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September 13, 2011, the Court found that Defendant Kenneth Looney

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had defaulted and directed the Clerk to enter default as to Mr.

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Looney, which the Clerk did on September 16, 2011.

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On August 4,
On

At that time,

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the Court also instructed Plaintiff J & J Sports Productions, Inc.

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to file a motion for default judgment within thirty days thereof.

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On November 3, 2011, this Court dismissed this case for

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failure to prosecute, because Plaintiff had not filed a motion for

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default judgment.

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On November 23, 2011, Plaintiff filed this motion seeking to

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set aside the dismissal under Federal Rule of Civil Procedure

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60(b)(1).

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action was caused by excusable neglect due to a transition in

Plaintiff asserts that its failure to prosecute this

United States District Court
For the Northern District of California

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staffing.

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the Law Offices of Thomas P. Riley, P.C., Plaintiff’s counsel, who

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was in charge of all matters pending in the Northern District of

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California, left the employment of Plaintiff’s counsel on

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September 29, 2011, and that while Plaintiff’s counsel was

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searching for a full-time replacement, the assistant’s duties were

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transferred to other administrative assistants in the office, but

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that, due to an oversight, the instant case was overlooked and

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Plaintiff failed to comply with the deadline set forth in this

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Court’s September 13, 2011 Order.

Plaintiff states that the administrative assistant in

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Riley Decl. ¶¶ 3-6.

DISCUSSION
Federal Rule of Civil Procedure 60(b)(1) allows a court “to

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relieve a party or its legal representative from a final judgment,

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order, or proceeding for . . . mistake, inadvertence, surprise, or

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excusable neglect.”

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there has been no merits decision, appropriate exercise of

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district court discretion under Rule 60(b) requires that the

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finality interest should give way fairly readily, to further the

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competing interest in reaching the merits of a dispute.”

The Ninth Circuit has stated that “where

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TCI

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Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir.

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2001).

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Excusable neglect under Rule 60(b)(1) “encompasses situations

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in which the failure to comply with a filing deadline is

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attributable to negligence, and includes omissions caused by

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carelessness.”

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Cir. 2009) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs.

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Ltd., 507 U.S. 380, 388, 394) (internal quotation marks and

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formatting omitted)).

Lemoge v. United States, 587 F.3d 1188, 1192 (9th

“The determination of whether neglect is

United States District Court
For the Northern District of California

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excusable ‘is at bottom an equitable one, taking account of all

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relevant circumstances surrounding the party's omission.’”

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(quoting Pioneer, 507 U.S. at 395).

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excusable, we conduct the equitable analysis specified in Pioneer

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by examining at least four factors: (1) the danger of prejudice to

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the opposing party; (2) the length of the delay and its potential

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impact on the proceedings; (3) the reason for the delay; and

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(4) whether the movant acted in good faith.”

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v. U.S. Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000))

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(internal quotation marks and formatting omitted).

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Id.

“To determine when neglect is

Id. (quoting Bateman

These factors weigh in favor of setting aside the order of

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dismissal in the case at hand.

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proceedings prior to the dismissal, there is no prejudice apparent

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to the opposing party that would result from setting aside the

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order of dismissal.

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Plaintiff filing this motion seeking to set aside that order was

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less than three weeks, a relatively short amount of time.

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delay is also likely to have little or no impact on the

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proceedings, given that the Clerk has already entered default as

Given the posture of the

The delay between the date of dismissal and

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This

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to both Defendants in this action.

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for default judgment by the deadline was the result of an error

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due to a staffing transition within the office of Plaintiff’s

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counsel and it appears that Plaintiff has acted in good faith.

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The failure to file the motion

CONCLUSION
For the reasons set forth above, the Court GRANTS Plaintiff’s

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Motion to Reinstate Case (Docket No. 33) and VACATES the Order

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Dismissing Case for Failure to Prosecute (Docket No. 32).

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Clerk shall reopen this file.

United States District Court
For the Northern District of California

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The

Plaintiff shall file its motion for default judgment within

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fourteen days of the date of this Order.

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motion will be referred to a Magistrate Judge, pursuant to Civil

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Local Rule 72-1.

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will result in the dismissal of this case for failure to

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prosecute.

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Upon filing, Plaintiff’s

Plaintiff’s failure to comply with this order

IT IS SO ORDERED.

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Dated: 12/16/2011

CLAUDIA WILKEN
United States District Judge

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