Schwartz-Tallard v. HSBC Bank USA, National Associaton

Filing 14

ORDER Denying 13 Motion for Magistrate Judge to Reconsider Magistrate Judge Order. Signed by Chief Judge Gloria M. Navarro on 6/5/15. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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IRENE MICHELLE SCHWARTZTALLARD, an individual,

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Plaintiff,
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vs.
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HSBC BANK USA, National Association, )
its Assignees and/or Successors, and
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DOES I through X inclusive,
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Defendants.
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Case No.: 2:14-cv-01908-GMN-VCF
ORDER

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Before the Court is the Motion for Reconsideration (ECF No. 13) filed by Plaintiff Irene

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Michelle Schwartz-Tallard (“Plaintiff”). For the reasons that follow, the Court DENIES

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Plaintiff’s Motion for Reconsideration.

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I.

BACKGROUND

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Plaintiff originally filed this lawsuit on September 9, 2014 in Nevada state court. (Pet. for

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Removal Ex. A, ECF No. 1-1). Defendant HSBC Bank USA (“Defendant”) removed the case to

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this Court on November 14, 2014. (Pet. for Removal, ECF No. 1).
On January 15, 2015, Defendant filed a Motion to Dismiss. (ECF No. 10). Plaintiff failed

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to file a timely response and pursuant to Local Rule 7-2(d), the Court granted the Motion to

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Dismiss and dismissed Plaintiff’s Complaint without prejudice. Shortly thereafter, Plaintiff filed

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the instant motion.

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II.

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DISCUSSION
Plaintiff requests that the Court reconsider its Order dismissing the case pursuant to Rule

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60(b)(1) of the Federal Rules of Civil Procedure on the grounds that “there was excusable

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neglect in not filing an Opposition.” (Mot. for Reconsideration 8:14–16, ECF No. 13). Rule

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60(b)(1) allows for relief from a final judgment based on “mistake, inadvertence, surprise, or

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excusable neglect.” Fed. R. Civ. P. 60(b)(1).

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To determine whether there was “excusable neglect,” as used in Rule 60(b)(1), a court

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must evaluate four non-exhaustive factors: “(1) the danger of prejudice to the opposing party;

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(2) the length of the delay and its potential impact on the proceedings; (3) the reason for the

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delay; and (4) whether the movant acted in good faith .” Bateman v. U.S. Postal Service, 231

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F.3d 1220, 1223–24 (9th Cir. 2000). “Thus, although a late filing will ordinarily not be excused

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by negligence, that possibility is by no means foreclosed.” Briones v. Riviera Hotel & Casino,

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116 F.3d 379, 382 (9th Cir. 1997) (internal footnote omitted).

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In her Motion, Plaintiff only addresses the third factor, claiming that excusable neglect

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was present because her counsel, Michael J. Harker (“Harker”), “inadvertently failed to remove

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the email that was with the Federal Court clerks office for service” after he “separated from

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Brian Boggess, Esq., and established the Law Offices of Michael J. Harker, Esq.” (Mot. for

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Reconsideration 2:1–4). Although “Harker continued to receive service from this email for

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quite some time inasmuch as the email still existed and correspondence that went to said email

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was forwarded to [] Harker’s new email,” the email was shut down in late December 2014 or

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early January 2015, and Harker and his staff were no longer receiving any emails that were sent

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to the old email account. (Id. 2:5–10). Plaintiff further explains that “[w]hen the Motion to

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Dismiss was filed, it was filed by Defendant and the service was the electronic service,” which

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was sent to the old email account that had been shut down. (Id. 2:11–12). Accordingly, “Harker

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was not aware of the Motion to Dismiss,” even though “Harker had given an extension to

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Defendants to file the Motion and should have been on the ‘lookout’ for it and therefore, admits

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that he should have been more diligent regarding the same.” (Id. 2:13–15).

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Under Rule 60(b)(1), “[r]elief will not be granted if the mistake, inadvertence, or

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excusable neglect is due to the carelessness on the part of the litigant or his attorney.” Timbisha

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Shoshone Tribe v. Kennedy, 267 F.R.D. 333, 336 (E.D. Cal. 2010) (citation and quotation marks

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omitted). Rather, Rule 60(b)(1) requires some justification for the failure to avoid the mistake.

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Id. Here, the Court finds Harker’s failure to update his email address for electronic service

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constitutes does not excusable neglect. Accordingly, the Court denies Plaintiff’s Motion.
Moreover, Plaintiff’s motion did not cite Bateman or Briones and did not discuss any of

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the factors under the equitable test. Furthermore, because Plaintiff's Motion only addressed—

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and unconvincingly so—the third factor in the excusable neglect analysis, the Court is within its

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discretion to deny her Motion on that ground alone. See Bateman, 231 F.3d at 1224 (“The court

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would have been within its discretion if it spelled out the equitable test and then concluded that

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[the movant] had failed to present any evidence relevant to the four factors.”). Nonetheless,

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Plaintiff acknowledges that “the case was dismissed without prejudice and [Plaintiff] can re file

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the same.” (Mot. for Reconsideration 8:13–14).

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III.

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CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration (ECF No. 13) is

DENIED.
DATED this 5th day of June, 2015.

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________________________________
Gloria M. Navarro
United States District Judge

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