Stickler et al v. United Recovery Systems, LP et al

Filing 59

ORDER denying 55 Motion to Set Aside Judgment. Signed by Judge Robert C. Jones on 3/30/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
______________________________________
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MICHAEL STICKLER et al.,
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Plaintiffs,
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vs.
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UNITED RECOVERY SYSTEMS, LP et al., )
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Defendants.
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)

3:15-cv-0281-RCJ-VPC
ORDER

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Plaintiffs Michael and Kimberly Stickler sued United Recovery Systems, LP (“URS”),

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HSBC Bank, N.A., HSBC Auto Finance, Inc., and Santander Consumer USA, Inc. (“Santander”)

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in pro se in state court for violations of the Fair Debt Collection Practices Act (“FDCPA”), the

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Nevada Unfair Trade Practices Act (“NUPTA”), fraud, breach of the covenant of good faith and

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fair dealing (“bad faith”), and intentional infliction of emotional distress (“IIED”). (See Compl.,

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ECF No. 1, at 6). Santander removed. Santander and HSBC Defendants moved to dismiss, and

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Plaintiffs moved to amend. The Magistrate Judge denied the motion to amend and deemed the

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motion to dismiss withdrawn. The Magistrate Judge granted a later motion to amend. The

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Amended Complaint (“AC”) lists URS, HSBC Defendants, Santander, NCB Management

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Services, Inc. (“NCB”), and Midland Funding (“Midland”) as Defendants on four causes of

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action: (1) FDCPA; (2) NUPTA; (3) bad faith; and (4) IIED. Defendants answered.

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Midland moved for judgment on the pleadings, and the other Defendants joined the

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motion. Responses were due Wednesday, February 10, 2016. (See Klingele Notice, ECF No. 47

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(providing that responses were due 14 days from the date of that order, January 27, 2016)). As

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of February 11, 2016, Plaintiffs had not timely responded or requested any extension of time to

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respond. Plaintiffs thereby consented to the granting of the motion, and the Court granted it,

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entered the Judgment, and closed the case. See Local R. Civ. Prac. 7-2(d).

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Plaintiffs have asked the Court to set aside the Judgment. Plaintiffs argue they intended

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to file a response on February 16, 2016, the date of the dismissal order, because they added three

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days for mailing. Seventeen days from January 27, 2016 was Saturday, February 13, 2016, and

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the next business day was Tuesday, February 16, 2016. Plaintiffs should not have added three

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days for mailing, however. The Klingele order provided that a response was due 14 days “from

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the date of this Minute Order,” not 14 days from the date of receipt of the order. The “three day”

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rule is a rebuttable presumption that the U.S. Post Office takes three days to deliver mail. The

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rule is relevant where the critical event is the date of receipt of a document, e.g., as with the

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ninety-day right-to-sue window after the EEOC’s rejection of a charge of discrimination. See 42

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U.S.C. § 2000e-5(f)(1). The rule is not relevant, however, where the critical event is not receipt

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of a document but a fixed date set by the court. See, e.g., Federal Appellate Practice: Ninth

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Circuit § 4:10 (2015–2016 ed.).

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The neglect may be excusable under Rule 60(b)(1) given that Plaintiffs are proceeding in

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pro se. But Defendants argue in opposition that Plaintiffs have repeatedly ignored deadlines set

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by the Court, e.g., by failing to respond to the motion for judgment on the pleadings by the

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January 25, 2016 deadline set by CM/ECF, and then by failing to respond to the February 10,

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2016 deadline as extended by the Court sua sponte via the Klingele notice issued on January 27,

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2016. Moreover, Defendants note that the belated response was filed on February 17, 2016, the

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day after Plaintiffs themselves argue it was due, and February 16, 2016 was not a weekend or

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holiday, which belies Plaintiffs’ claim that they were prepared to file the response on February

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16, 2016, the date of the dismissal order. If Plaintiffs truly intended to file the response on

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February 16, 2016, there was nothing preventing it. The filing on February 17, 2016 is, as

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Defendants argue, good evidence that the response was filed only in reaction to the Court’s

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dismissal order.
CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Set Aside Judgment (ECF No. 55) is
DENIED.

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IT IS SO ORDERED.

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DATED: 15th day of March,
Dated thisMarch 30, 2016. 2016.

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_____________________________________
ROBERT C. JONES
United States District Judge

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