United States of America v. Alliance Mechanical, Inc. et al

Filing 38

ORDER that 33 Motion for Reconsideration is GRANTED. FURTHER ORDERED that 29 Motion for Entry of Clerks Default as to Alliance/Penta, A JV is GRANTED. Signed by Judge James C. Mahan on 3/15/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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2:12-CV-1088 JCM (CWH)

THE UNITED STATES OF AMERICA
for the use of BOMBARD
MECHANICAL, LLC,
Plaintiff(s),

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v.

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ALLIANCE MECHANICAL, INC., et
al.,

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Defendant(s).

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ORDER

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Presently before the court is plaintiff United States’ motion for reconsideration under FRCP

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60(b). (Doc. #33). No response has been filed.

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I.

Background

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On June 25, 2012, plaintiff filed its complaint. (Doc. #1). On September 17, 2012, plaintiff

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filed a motion seeking an enlargement of time to serve defendant Alliance/Penta, a joint venture, and

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to serve defendant by way of publication. (Docs. #16, #17). Both of these motions were granted by

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the magistrate judge.1 (Doc. #18).

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On November 16, 2012 plaintiff moved for the entry of a clerk’s default against defendant

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Alliance/Penta. (Doc. #29). However, due to improper proof of service and the expiration of the

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James C. Mahan
U.S. District Judge

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The magistrate judge granted a 60-day extension to complete service under Fed.R.Civ.P. 4, extending the
deadline to December 24, 2012. (Doc. #18, 4:3-4).

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deadline to file such proof, the motion was denied and defendant Alliance/Penta was dismissed

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without prejudice. (Doc. #32).

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Plaintiff now moves for reconsideration of that dismissal based on excusable neglect and/or

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mistake under FRCP 60(b). (Doc. #33, 3:2-3). Plaintiff claims he failed to attach the affidavit of

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publication, which is attached to the instant motion, because he believed “that the publisher would

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file the affidavit with the [c]ourt.” (Doc. #33, 3:7-8).

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Plaintiff’s mistaken belief that the publisher would file the affidavit with the court was based

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on three factors. First, plaintiff is accustomed to practicing in state court. (Doc. #33, 3:9). Second,

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plaintiff used the same publisher it used here for many years, and in state court the publisher files

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the affidavit of publication automatically with the court. (Doc. #33, 3:9-12). Lastly, plaintiff did not

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discover that the publisher does not file the affidavit of publication automatically at the federal level

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until it contacted the publisher after receiving the court’s order. (Doc. #33, 3:12-15).

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II.

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Under Rule 60(b), a court may relieve a party from a final judgment, order or proceeding only

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in the following circumstances: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

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discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been satisfied; or (6)

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any other reason justifying relief from the judgment. Stewart v. Dupnik, 243 F.3d 549, 549 (9th Cir.

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2000); see also De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir. 2000) (noting

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that the district court’s denial of a Rule 60(b) motion is reviewed for an abuse of discretion).

Legal Standard

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Excusable neglect is a flexible and equitable concept taking into account all relevant

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surrounding circumstances of the party’s omission including at least four factors: “(1) the danger of

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prejudice to the opposing party; (2) the length of the delay and its potential impact on the

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proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” Bateman

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v. U.S. Postal Service, 231 F.3d 1220, 23-24 (9th Cir. 2000); see also Pioneer Investment Services

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Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 392, 395 (1993) (created the four

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part equitable test for determining excusable neglect outlined above); see also Committee for Idaho’s

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High Desert, Inc. v. Yost, 92 F.3d 814, 825 (9th Cir. 1996) (applied Pioneer’s excusable neglect test

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James C. Mahan
U.S. District Judge

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to Fed.R.Civ.P. 6(b)); see also Briones v. Rivera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997)

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(applied Pioneer’s excusable neglect equitable test to Fed.R.Civ.P. 60(b)’s excusable neglect

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exception).

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III.

Discussion

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The court analyzes the present instant motion under the four part excusable neglect test.

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Allowing for reconsideration will not prejudice defendant, as it has not yet responded to

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service.

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The length of delay is significant. The court extended the deadline for completion of service

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to December 24, 2012. (See doc. #18). That was nearly 50 days ago. Further, it has been more than

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120 days since the complaint was filed.2 (Doc. #1); see also FED.R.CIV.P. 4(m).

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However, the court finds plaintiff’s reason for delay sufficient to warrant reconsideration.

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Excusable neglect encompasses “omissions caused by carelessness.” Lemoge v. U.S., 587 F.3d 1188,

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1192 (9th Cir 2009)(quoting Pioneer Inv. Servs. Co., 507 U.S. at 394). Plaintiff’s unfamiliarity with

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the publisher’s filing practices in this court and its failure to confirm whether the affidavit of

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publication was filed falls within an omission “caused by carelessness.” Id.

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Last, there is no evidence that plaintiff acted in bad faith.

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Therefore, in weighing these factors and given the flexible standard of excusable neglect, the

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court grants plaintiff’s motion. Analysis under mistake is unnecessary.

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IV.

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for

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reconsideration (doc. #33) be, and the same hereby is, GRANTED.

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James C. Mahan
U.S. District Judge

The complaint was filed on June 25, 2012. (Doc. #1).

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IT IS FURTHER ORDERED that plaintiff’s motion for entry of clerk’s default (doc. #29)
be, and the same hereby is, GRANTED as to defendant Alliance/Penta .3
DATED March 15, 2013.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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Plaintiff has filed proper proof of service. (See doc. # 34).

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