McGee v. Midland Credit Management Inc

Filing 30

ORDER Denying 26 Plaintiff's Motion for Reconsideration. Signed by Judge Michael M. Anello on 8/20/2019. (rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MICHELLE MCGEE,
Plaintiff,

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Case No.: 14cv1317-MMA (MDD)
ORDER DENYING PLAINTIFF’S
MOTION FOR
RECONSIDERATION

v.
MIDLAND CREDIT MANAGEMENT,
INC.,

[Doc. No. 26]

Defendant.

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Before the Court is Plaintiff Michelle McGee’s (“Plaintiff” or “Plaintiff McGee”)

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motion for reconsideration of the Court’s February 21, 2019 Order dismissing her case

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with prejudice. Doc. No. 26. Defendant Midland Credit Management, Inc.

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(“Defendant”) opposes the motion. Doc. No. 28. The Court found the matter suitable for

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determination on the papers and without oral argument pursuant to Civil Local Rule

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7.1.d.1. For the reasons set forth below, the Court DENIES Plaintiff’s motion.

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RELEVANT BACKGROUND
On August 10, 2018, a group of counsel for Plaintiffs and Defendants in the multi-

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district litigation (“MDL”) jointly moved for the Court’s approval of a discovery

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questionnaire and a related protective order providing for limited discovery. In Re:

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Midland Credit Management, Inc. Telephone Consumer Protection Litigation, MDL No.

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2286, MDL Doc. No. 603. On August 15, 2018, the Court ordered any Plaintiff to object
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to the proposed questionnaire and related procedures. MDL Doc. No. 604. On

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September 5, 2018, and having received no objections, the Court ordered all Plaintiffs in

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the MDL to complete and serve a discovery questionnaire within 45 days. MDL Doc.

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No. 608. The Court permitted Defendants to seek dismissal of any cases in which

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Plaintiffs failed to serve a completed questionnaire. Id.

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On November 13, 2018, Defendants moved for an order to show cause why cases

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in which Plaintiffs failed to timely serve a completed questionnaire should not be

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dismissed. MDL Doc. No. 615. Plaintiff McGee’s case was listed in Defendants’

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motion. Id. The Court granted the motion and ordered that Plaintiffs who did not

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complete the questionnaire, including Plaintiff McGee, show cause why their cases

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should not be dismissed on or before November 30, 2018. MDL Doc. No. 617. Several

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Plaintiffs responded. See MDL Docket. However, Plaintiff McGee did not show cause

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why her case should not be dismissed. See id. On January 14, 2019, the Court refused to

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recommend dismissal in cases where Plaintiffs served their discovery questionnaires late,

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but indicated it would recommend dismissal of any cases where Plaintiffs failed to

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respond. MDL Doc. No. 657. Some Plaintiffs responded to the January 14 Order, and

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the Court granted them relief. MDL Doc. Nos. 662, 671. Plaintiff McGee did not

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respond to the January 14 Order. See MDL Docket.

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On February 6, 2019, Judge Dembin recommended dismissal of cases in which

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Plaintiffs had not responded to the Court’s order to show cause. MDL Doc. No. 672.

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Plaintiff McGee did not object to Judge Dembin’s recommendation, and the Court

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subsequently adopted the recommendation and dismissed Plaintiff McGee’s case with

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prejudice. See Doc. No. 24. Four months later, Plaintiff McGee filed the instant motion

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for reconsideration pursuant to Federal Rule of Civil Procedure 60(b). Doc. No. 26.

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LEGAL STANDARD

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Pursuant to Federal Rule of Civil Procedure 60(b), district courts have the power to

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reconsider a previous ruling or entry of judgment. Reconsideration under Rule 60(b) may

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be granted in the case of: (1) mistake, inadvertence, surprise or excusable neglect; (2)
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newly discovered evidence; or (3) fraud; or if (4) the judgment is void; (5) the judgment

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has been satisfied; or (6) for any other reason justifying relief. See Fed. R. Civ. P. 60(b).

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DISCUSSION

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Plaintiff moves for reconsideration under Rule 60(b)(1) and 60(b)(6) on the

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grounds that “counsel inadvertently missed the deadline for submitting responses to a

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[d]iscovery [q]uestionnaire” because there “were numerous [filings] and frequently

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[there] were notices of additional cases being added to the MDL.” Doc. No. 26 at 1-2.

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But for “the volume of the filings and notices in addition to other notices related to the

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busy litigation practice of Plaintiff’s counsel,” the e-mail notifications would have been

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opened “on a timely basis.” Id. at 2. Defendant opposes reconsideration and argues that

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Plaintiff did not merely miss the discovery questionnaire deadline, but “ignored at least

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five court orders.” Doc. No. 28 at 1.

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A.

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Excusable Neglect
First, Plaintiff argues her counsel’s failure to timely produce the discovery

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questionnaire constitutes excusable neglect because of the numerous filings in this MDL.

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Doc. No. 26 at 1-2. The Supreme Court set forth the following four-factor test to

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determine whether circumstances constitute excusable neglect: (1) “‘the danger of

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prejudice’” to the non-moving party; (2) “‘the length of the delay and its potential impact

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on judicial proceedings[;]’” (3) “‘the reason for the delay, including whether it was

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within the reasonable control of the movant[;]’” and (4) “‘whether the movant acted in

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good faith.’" Iopa v. Saltchuck-Young Bros., Ltd., 916 F.3d 1298, 1301 (9th Cir. 2019)

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(quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395

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(1993)).

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Regarding the first and second considerations, Plaintiff McGee has continually

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refused to move her case forward and has unreasonably stalled the case. Plaintiff has had

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the ability to participate in discovery in this case since August 15, 2018. See MDL Doc.

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No. 608. Plaintiff produced the discovery questionnaire more than eight months late.

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See Doc. No. 26 at 2 (stating that Plaintiff submitted the discovery questionnaire
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“[c]oncurrent with the filing of this Motion”); see also MDL Doc. No. 608 (ordering the

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discovery questionnaire to be submitted within 45 days of September 5, 2018). She also

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failed to respond to five Court orders indicating that a failure to respond to any order to

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show cause would result in dismissal of the case over a period of three months. MDL

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Doc. Nos. 617, 657, 662, 671, 672. Having received no filings from Plaintiff in response

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to any of the orders—including the order to show cause and to Judge Dembin’s report

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and recommendation—the Court dismissed her case. Doc. Nos. 24-25. Plaintiff then

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waited four months to file a motion for reconsideration. See Doc. Nos. 24-26. As a

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result, Plaintiff was not actively involved in this case for almost a year. See MDL

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Docket.
Plaintiff argues this does not prejudice the parties in this MDL because the next

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phase of discovery has not yet begun. Doc. No. 26 at 2. However, Plaintiff ignores that

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Defendant must produce “Plaintiff-Specific Information” in response to the discovery

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questionnaire. MDL Doc. No. 608 at 4. The parties to the MDL have already submitted

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status reports regarding the next phase of discovery. MDL Doc. Nos. 695-97. As a

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result, permitting Plaintiff’s case to re-open would require the Court to hold off on

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scheduling the next phase of discovery, which may require further status reports. See

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MDL Doc. Nos. 689, 695-97. This would prejudice all parties in the MDL by

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unnecessarily delaying discovery.

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Considering the third factor, Plaintiff’s reason for the length of the delay is failure

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to timely open notices of electronic filings. Doc. No. 26. The Court finds that not

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opening notices of electronic filings, despite the “numerous” notifications Plaintiff’s

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counsel received, is not excusable neglect, particularly in light of the fact that Plaintiff’s

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counsel apparently did not open emails for several months. Opening email notifications

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regarding a client’s case is certainly “‘within the reasonable control of the movant.’”

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Iopa, 916 F.3d at 1301 (quoting Pioneer Inv. Servs. Co., 507 U.S. at 395). With respect

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to the final factor, the Court finds no evidence of bad faith.

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Although the Court finds no evidence of bad faith, the prejudice to the non-moving
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parties in the MDL and the length and reason of the delay do not constitute excusable

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neglect. Accordingly, reconsideration is not warranted pursuant to Rule 60(b)(1).

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B.

Other Reason Justifying Relief

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Plaintiff also contends that her “inability to present her viable case due to the

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actions of her counsel and no fault of her own” justifies relief under Rule 60(b)(6). Doc.

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No. 26 at 2. Rule 60(b)(6) allows the Court to relieve a party form an order for any

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reason that justifies relief. Fed. R. Civ. P. 60(b)(6). The rule “is to be ‘used sparingly as

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an equitable remedy to prevent manifest injustice and is to be utilized only where

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

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correct an erroneous judgment.’” Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008)

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(quoting Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006)).

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The moving party “‘must demonstrate both injury and circumstances beyond [her]

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control.’” Latshaw, 452 F.3d at 1103 (quoting Cmty. Dental Servs. v. Tani, 282 F.3d

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1164, 1168 (9th Cir. 2002)). Here, Plaintiff has not shown “that circumstances beyond

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[her] control prevented timely action to protect [her] interests.” United States v. Alpine

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Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). Plaintiff’s counsel failed to

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open notifications of electronic filings or to check the docket in this case, resulting in a

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missed discovery deadline and five missed opportunities to prevent the case from being

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dismissed. This is not an extraordinary circumstance warranting relief. Accordingly, the

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Court finds that relief under Rule 60(b)(6) is not justified.
CONCLUSION

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For the reasons set forth above, the Court DENIES Plaintiff’s Motion for

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Reconsideration.

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IT IS SO ORDERED.
Dated: August 20, 2019

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