McClendon v. Colvin

Filing 10

ORDER to Show Cause Why the Court Should Set Aside Judgment. Signed by Judge Phyllis J. Hamilton on 04/05/2017. (pjhlc2S, COURT STAFF) (Filed on 4/5/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STANTON MCCLENDON,

Case No. 17-cv-00408-PJH

Plaintiff,
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v.
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NANCY A. BERRYHILL,
Defendant.

ORDER TO SHOW CAUSE WHY THE
COURT SHOULD SET ASIDE
JUDGMENT
Re: Dkt. No. 9

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United States District Court
Northern District of California

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On January 31, 2017, the court ordered pro se plaintiff Stanton McClendon to re-

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file his application to proceed in forma pauperis (“IFP application”) by February 21. Dkt.

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4. The deadline passed without action from plaintiff. On February 27, the court extended

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the deadline to March 17, and warned the plaintiff that the case would be dismissed if he

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did not respond. Dkt. 5. Again, plaintiff failed to respond by the deadline. As a result, on

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March 24, the court dismissed this case for failure to prosecute and entered judgment

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against plaintiff. Dkt. 7, 8.

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However, a week after the dismissal, plaintiff filed a new IFP application, which

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was signed and dated on March 31, 2017 (two weeks after the extended deadline). Dkt.

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9. Although the court is mindful that plaintiff is proceeding pro se, this cannot excuse

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repeated failure to comply with the court’s orders. Plaintiff is admonished that he must

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comply with court orders and deadlines if this case is to continue.

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Before the court can consider plaintiff’s re-filed IFP application, plaintiff must

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explain why he did not comply with the court’s earlier deadlines. The court has already

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entered judgment in this case. Under Federal Rule of Civil Procedure 60(b), a judgment

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can be set aside only in certain circumstances. Such circumstances include “mistake,

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inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). To determine

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whether there has been “excusable neglect” by a party, the court examines “(1) the

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danger of prejudice to 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 (4) whether the movant

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acted in good faith.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir.

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2010). The court cannot determine whether plaintiff’s neglect was excusable until he

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explains why he failed to meet the deadlines.

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The court also has equitable discretion to provide relief from a judgment for “any

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other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6); see generally Lal v. California,

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610 F.3d 518 (9th Cir. 2010). However, relief from judgment under Rule 60(b)(6) is to be
“used sparingly as an equitable remedy to prevent manifest injustice . . . where

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United States District Court
Northern District of California

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extraordinary circumstances prevented a party from taking timely action to prevent or

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correct an erroneous judgment.” United States v. Alpine Land & Reservoir Co., 984 F.2d

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1047, 1049 (9th Cir. 1993). The party seeking relief under Rule 60(b)(6) bears the

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burden of demonstrating “both injury and circumstances beyond his control that

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prevented him from proceeding with the prosecution . . . of the action in a proper fashion.”

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Community Dental Servs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002).

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Plaintiff shall provide the court with an explanation of why he failed to meet the

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earlier deadline by April 26, 2017. The explanation must include the case number and

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be submitted to the Clerk’s Office in San Francisco or Oakland, or mailed to: Clerk’s

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Office, United States District Court, 1301 Clay Street, Suite 400 South, Oakland, CA

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94612. Resources and information for pro se litigants may be found at

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https://www.cand.uscourts.gov/pro-se.

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IT IS SO ORDERED.
Dated: April 5, 2017

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__________________________________
PHYLLIS J. HAMILTON
United States District Judge

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