Gordon v. Hughes et al

Filing 8

ORDER Granting 7 Motion to Set Aside the Judgment. The Clerk shall set aside 5 Order Dismissing Case and 6 Clerk's Judgment. Amended Complaint deadline: 10/22/2014. Signed by Judge Jennifer A. Dorsey on 10/2/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STEPHANIE GORDON,

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CASE NO.: 2:13-cv-1072-JAD-GWF
Plaintiff,

vs.

ORDER

JEFF HUGHES, et al.,
Defendants.

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On January 15, 2014, the court dismissed plaintiff’s claims without prejudice for failure to

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state a claim upon which relief can be granted. Doc. 3. Plaintiff was given until February 13,

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2014, to file an amended complaint that cures the deficiencies noted in the order; she filed none.

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On July 11, 2014, I dismissed the case, and judgment was entered in favor of the defendants. Id.

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Plaintiff now moves to set aside the judgment. Doc. 7. She represents that she never

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received the order directing amendment and wants an opportunity to continue to litigate this case.

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Id. I liberally construe this as a motion for relief from the judgment under Rule 60(b) and grant it.

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Rule 60(b) permits a court to relieve a party from a final judgment, order, or proceeding if

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the movant can demonstrate: (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

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(6) any other reason justifying relief from the judgment. Stewart v. Dupnik, 243 F.3d 549, 549

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(9th Cir. 2000). The rule is “remedial in nature and . . . must be liberally applied.” TCI Group

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Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001). “Determining whether neglect is

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excusable requires a court to balance ‘the danger or prejudice to the [other party], the length of

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the delay and its potential impact on judicial proceedings, the reason for the delay,. . . and

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whether the movant acted in good faith.’” Uche-Uwakwe v. Shinseki, 349 F. App’x 136, 138 (9th

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Cir. 2009) (quoting Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997)).
Having considered each of these factors, I find excusable neglect that justifies setting

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aside the judgment. Although plaintiff waited seven months from the order directing amendment

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to file the instant motion, she explains that she never received that order or the court’s ultimate

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dismissal order. Doc. 7. She claims she learned of the disposition from an attorney on July 30,

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2014; she filed her motion for relief nine days later. Id. The motion was made “within a

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reasonable time” as Rule 60(c) requires and, in any event, far less than a year after the entry of

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judgment. Fed. R. Civ. P. 60(b) & (c). It appears that the length of the delay was not excessive in

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light of the circumstances, and, taking plaintiff at her word, I see nothing to cause me to conclude

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that she did not act in good faith. I also do not see any danger or true prejudice to the defendants

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if the judgment is unwound and I renew plaintiff’s opportunity to file an amended complaint if

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she can cure the deficiencies identified in the dismissal order. When I overlay these

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considerations with the policy favoring deciding cases on their merits, I conclude that the motion

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should be granted.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion to set aside the judgment

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[#7] is GRANTED;
The Clerk of Court is instructed to set aside the judgment in favor of defendants [#6]

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and the order dismissing the case [#5];

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IT IS FURTHER ORDERED that plaintiff has until October 22, 2014, to file an

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amended complaint that cures the deficiencies identified in the dismissal order [#3].1 Plaintiff is

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cautioned that her failure to file a timely and proper amended complaint in full compliance with

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the rules of this court and the instructions in the order [#3] may result in the dismissal of this case

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with prejudice and without additional prior notice.

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Plaintiff has a copy of this order; she attached it to the instant motion. Doc. 7 at 5.
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The Clerk of Court is directed to mail plaintiff a copy of this order at plaintiff’s record
address.
Dated: October 2, 2014.

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JENNIFER A. DORSEY
UNITED STATES DISTRICT JUDGE

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