Smith v. Hunt & Henriques et al

Filing 25

ORDER. Signed by Judge Lucy H. Koh on April 25, 2013. (lhklc1, COURT STAFF) (Filed on 4/25/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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RAYMOND J. SMITH,

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Plaintiff,
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vs.
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HUNT & HENRIQUES, MICHAEL S. HUNT, )
and JANALIE HENRIQUES,
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Defendants.
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I.

Case No.: 12-CV-04150-LHK
ORDER GRANTING MOTION FOR
RECONSIDERATION; ORDER
GRANTING SUBSTITUTION OF
COUNSEL

Background
Plaintiff Raymond J. Smith (“Plaintiff”) filed his complaint on August 7, 2012 in the instant

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matter. On August 30, 2012, Defendants filed their answer. ECF No. 4. A Case Management

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Conference was scheduled for February 6, 2013 at 2:00 p.m. ECF No. 10. The parties were

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required to file a Joint Case Management Conference Statement by January 30, 2013. Id.

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Defendants filed a separate Case Management Conference Statement on February 1, 2013. ECF

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No. 11. Defendants stated that they were not able to communicate with Plaintiff and therefore

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were unable to file a Joint Case Management Conference Statement. Plaintiff did not file a Case

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Management Conference Statement. Plaintiff also did not appear at the February 6, 2013 Case

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Management Conference.

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Case No.: 11-CV-04150-LHK
ORDER GRANTING MOTION FOR RECONSIDERATION; ORDER GRANTING SUBSTITUTION OF
COUNSEL

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In light of Plaintiff’s failure to file a Case Management Conference Statement and failure to

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appear at the February 6, 2013 Case Management Conference, the Court ordered Plaintiff to show

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cause, by February 20, 2013, why the case should not be dismissed with prejudice for failure to

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prosecute. ECF No. 13 (“OSC”). A hearing on the OSC was set for February 27, 2013. Id.

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On February 19, 2013, Plaintiff filed a response to the OSC. See ECF No. 15. Plaintiff

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stated that Plaintiff was unable to prepare a Case Management Conference Statement or participate

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in the Case Management Conference because Plaintiff is suffering from physical disabilities, which

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were exacerbated by a case of the flu. Id. at 1-2. Plaintiff also contested Defendants’

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representation that that Defendants were not able to communicate with Plaintiff. Id. at 3-4.

United States District Court
For the Northern District of California

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Plaintiff did not appear at the February 27, 2013 OSC hearing.
On March 1, 2013, the Court dismissed Plaintiff’s case without prejudice as a result of

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Plaintiff’s failure to: (1) file a Case Management Conference Statement in advance of the February

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6, 2013 Case Management Conference; (2) appear at the February 6, 2013 Case Management

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Conference; and (3) appear at the February 27, 2013 OSC hearing. ECF No. 17 at 2. The Court

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also stated that its dismissal was based on the fact that Plaintiff filed his response to the OSC 11

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days late. See id. Nevertheless, because Plaintiff filed a response, the Court dismissed Plaintiff’s

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case without prejudice. See id.

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On March 13, 2013, Plaintiff filed a Motion for Reconsideration requesting that the Court

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reconsider its Order dismissing the case. ECF No. 18. Plaintiff argues that Plaintiff did file a

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timely response to the OSC because Plaintiff filed his response on February 19, 2013, and the

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deadline to respond was February 20, 2013. Id. at 4.

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On March 25, 2013, the Court ordered Defendants to file a response to Plaintiff’s Motion

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for Reconsideration by March 29, 2013. ECF No. 20. Defendants filed their Opposition to the

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Motion for Reconsideration on March 27, 2013. ECF No. 21. In their Opposition, Defendants

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state that Plaintiff’s Motion for Reconsideration should be denied because Plaintiff’s case was not

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dismissed solely because of his failure to file a timely response to the OSC, but also because of

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Case No.: 11-CV-04150-LHK
ORDER GRANTING MOTION FOR RECONSIDERATION; ORDER GRANTING SUBSTITUTION OF
COUNSEL

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Plaintiff’s failure to appear at the February 6, 2013 Case Management Conference and the

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February 27, 2013 OSC hearing. Id.

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On April 15, 2013, Plaintiff filed a response to Defendants’ Opposition stating that Plaintiff

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has retained counsel to assist Plaintiff in prosecuting this case. ECF No. 22. On the same date,

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Plaintiff also filed a Consent Order requesting that the Court substitute Ashley D. Rose of the Rose

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Law Group as counsel for Plaintiff. ECF No. 23.

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II.

Legal Standard

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Under Rule 60(b), reconsideration is permitted upon a showing of: “(1) mistake,

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inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable

United States District Court
For the Northern District of California

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diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3)

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fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an

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opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or

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discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it

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prospectively is no longer equitable; or (6) any other reason that justifies relief.” Fed. R. Civ. Proc.

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60(b). Relief under the sixth category “requires a finding of ‘extraordinary circumstances.’”

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Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985).

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III.

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Analysis
Plaintiff is correct that Plaintiff’s response to the OSC was timely. Plaintiff’s response was

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due on February 20, 2013. Plaintiff filed his response on February 19, 2013. The Court erred in

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finding that Plaintiff’s response was not timely.

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However, as noted by Defendants, Plaintiff’s failure to timely respond to the OSC was not

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the Court’s only reason for dismissing the case. The Court also dismissed the case due to

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Plaintiff’s failure to: (1) file a Case Management Statement in advance of the February 6, 2013

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Case Management Conference; (2) appear at the February 6, 2013 Case Management Conference;

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and (3) appear at the February 27, 2013 OSC hearing. ECF No. 17.

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Nevertheless, the Court finds that Plaintiff’s motion for reconsideration should be granted.

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Each of the Court’s reasons for dismissing this case reflects the Court’s concern that Plaintiff will

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Case No.: 11-CV-04150-LHK
ORDER GRANTING MOTION FOR RECONSIDERATION; ORDER GRANTING SUBSTITUTION OF
COUNSEL

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not prosecute this case. However, Plaintiff’s timely response to the OSC, filing of a Motion for

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Reconsideration within two weeks of the Order Dismissing Plaintiff’s Case, and retention of an

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attorney demonstrate that Plaintiff is willing and able to prosecute this case. Thus, the Court finds

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that, in this case, the Court’s decision to dismiss the case should be reconsidered. Moreover, given

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that the Court dismissed Plaintiff’s case without prejudice, and accordingly, Plaintiff retains the

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ability to re-file the case at any time, the Court finds that Defendants will not be prejudiced if the

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Court allows this case to proceed rather than requiring Plaintiff to re-file it. Indeed, the only

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purpose that would be served by requiring Plaintiff to re-file the case under these circumstances

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would be to require Plaintiff to bear, for the second time, the expense associated with filing a case

United States District Court
For the Northern District of California

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and serving Defendants.
Thus, for the reasons set forth above, the Court finds that the circumstances in this case

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justify relief and GRANTS Plaintiff’s Motion for Reconsideration. Fed. R. Civ. Proc. 60(b). The

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Order Dismissing Plaintiff’s Case (ECF No. 17) is withdrawn. Plaintiff’s case is hereby reinstated.

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Additionally, Plaintiff’s request to substitute Ashley D. Rose as counsel is GRANTED. By May 3,

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2013, Plaintiff’s new counsel shall file a statement as to whether she intends to file an amended

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complaint. A further Case Management Conference shall be held on June 12, 2013, at 2:00 p.m.

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IT IS SO ORDERED.

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Dated: April 22, 2013
April 25, 2013

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 11-CV-04150-LHK
ORDER GRANTING MOTION FOR RECONSIDERATION; ORDER GRANTING SUBSTITUTION OF
COUNSEL