Webster Capital Finance, Inc. v. Milt's Eagle, LLC, et al.,

Filing 86

ORDER Granting 84 Motion to Set Aside 82 Local Rule 41-1 Order of Dismissal. Signed by Judge Roger L. Hunt on 8/3/12. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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WEBSTER CAPITAL FINANCE, INC.,

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Plaintiff,
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vs.
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MILT’S EAGLE, LLC, EAGLE JET
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AVIATION, INC., MILTON WOODS,
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individually, and ALEX PENLY, individually, )
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Defendants.
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_______________________________________)

Case No.: 2:09-cv-01367-RLH-PAL
ORDER
(Motion to Set Aside–#84)

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Before the Court is Plaintiff Webster Capital Finance, Inc.’s Motion to Set Aside

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Order of Dismissal for Want of Prosecution (#84, filed June 19, 2012) based on Rule 60 of the

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Federal Rules of Civil Procedure. Defendant Milton Woods, the only remaining Defendant in this

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case, did not file an Opposition.

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BACKGROUND

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Plaintiff Webster Capital and the Defendants are parties to an agreement in which

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Webster Capital loaned money to Milt’s Eagle (one of the Defendants) to fund the purchase of a

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commercial airplane. The loan was secured by the plane and the personal guaranties of the other

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Defendants. Webster Capital commenced this lawsuit in July 2009, alleging Defendants failed to

AO 72
(Rev. 8/82)

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repay the loan. The Court subsequently granted summary judgment against Defendant Milton

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Woods as to liability but denied summary judgment on the issue of damages. The Court later

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entered a default judgment against the other Defendants (Milt’s Eagle, Eagle Jet and Alex Penly),

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jointly and severely, for approximately $1.4 million in damages. Thus, at that point in

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time—around July 2011—the only remaining issue in the case was the damages issue as to Milton

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Woods.

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However, on April 9, 2012, the Court issued a notice of intent to dismiss the

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lawsuit because no action was taken by Webster Capital for several months—from July 2011 to

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April 2012. As Webster Capital did not respond to the Court’s notice, the Court dismissed the

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case for want of prosecution on May 29, 2012. Webster Capital has now filed a motion asking the

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Court to set aside its order of dismissal. For the reasons discussed below, the Court grants

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Webster Capital’s motion.

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DISCUSSION
Rule 60 of the Federal Rules of Civil Procedure provides, “the court may relieve a

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party or its legal representative from a final judgment, order or proceeding” for, among other

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things, excusable neglect and “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(1), (6).

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Excusable neglect includes situations when a party misses a filing deadline because of the parties

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negligence. Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009). The Court analyzes

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four factors in deciding whether neglect is excusable: (1) the danger of prejudice to the opposing

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party, (2) the length of the delay and its potential impact on the proceedings, (3) the reasons for the

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delay, and (4) whether the movant acted in good faith. Lemoge v. United States, 587 F.3d 1188,

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1192 (9th Cir. 2009).

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Webster Capital says that it did not file a response to the Court’s notice of intent to

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dismiss because its lead counsel’s relationship with local counsel broke down right around the

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time the notice was filed and it took lead counsel longer than expected to engage new local

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counsel. This situation, together with the claim that Webster Capital was in settlement

AO 72
(Rev. 8/82)

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negotiations with Milton Woods during the time in question, caused Webster Capital to neglect

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filing a response to the notice.

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The Court finds this neglect is excusable. First, setting aside the order of dismissal

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will not prejudice Woods. The Court has already entered summary judgment against Woods for

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liability and he admitted in his Answer that he was liable to Webster Capital for some amount of

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damages as well. All that remains to be done, therefore, is determine the proper amount of

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damages Woods owes. Furthermore, although the Court is not impressed with Webster Capital’s

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excuse for not responding to the notice, the Court has no reason to believe Webster Capital has

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acted in bad faith, and the delay caused by Webster Capital’s neglect is minimal. Therefore, the

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Court grants Webster Capital’s motion.

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CONCLUSION

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Accordingly, and for good cause appearing,

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IT IS HEREBY ORDERED that Webster Capital’s Motion to Set Aside (#84) is

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GRANTED. The Court sets aside its Order of Dismissal (#82) and reopens the case.
Dated: August 3, 2012.

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____________________________________
ROGER L. HUNT
United States District Judge

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AO 72
(Rev. 8/82)

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