McClellon v. Capital One Bank NA

Filing 24

ORDER denying Plaintiff's #22 Motion to Vacate the Court's Judgment signed by U.S. District Judge John C Coughenour. (TH) (cc: Plaintiff via USPS)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DONTE McCLELLON,

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Plaintiff,

ORDER

v.

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CASE NO. C18-0909-JCC

CAPITAL ONE BANK, N.A.,

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Defendant.

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This matter comes before the Court on Plaintiff’s motion to vacate judgment and

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reschedule status conference (Dkt. No. 22). Defendant opposes Plaintiff’s motion. (Dkt. No. 23.)

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On May 17, 2018, Plaintiff filed this lawsuit in King County Superior Court. (Dkt. No. 1-

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1 at 1.) On June 21, 2018, Defendant removed the case to this Court. 1 (Dkt. No. 1.) On June 28,

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2018, Defendant moved to dismiss Plaintiff’s complaint for failure to state a claim. (Dkt. No. 7.)

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On July 25, 2018, the Court granted Defendant’s motion to dismiss and dismissed Plaintiff’s

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complaint without prejudice and with leave to amend. (Dkt. No. 10.)

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On August 15, 2018, Plaintiff filed an amended complaint. (Dkt. No. 11.) On August 30,

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2018, Defendant filed a motion to dismiss the amended complaint. (Dkt. No. 12.) On October 22,

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2018, the Court granted Defendant’s motion to dismiss and again granted Plaintiff leave to file a

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Although initially assigned to the Hon. Richard A. Jones, the case was reassigned to this
Court on July 10, 2018. (See Dkt. No. 8.)
ORDER
C18-0909-JCC
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second amended complaint. (Dkt. No. 16.) Plaintiff failed to file a second amended complaint.

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(See Dkt. No. 18.)

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On November 14, 2018, the Court ordered Plaintiff to show cause why his case should

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not be dismissed for failure to file a second amended complaint. (Dkt. No. 19.) Plaintiff failed to

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respond to the Court’s order to show cause. On November 27, 2018, the Court dismissed

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Plaintiff’s amended complaint with prejudice and entered judgment. (Dkt. Nos. 20, 21.)

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On January 22, 2019, Plaintiff filed a one-page letter asking the Court to vacate its

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judgment dismissing his amended complaint. (Dkt. No. 22.) Plaintiff states that he has been

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“battling a chronic disease for over a year and it had intensified since Mid-October 2018 leaving

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[him] physically incapable to respond in a timely matter to this case and many other cases.” (Id.)

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Plaintiff asks that “this matter be allowed to proceed with a rescheduled status conference.” (Id.)

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In the Ninth Circuit, pro se parties are held to less stringent pleading standards than

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attorneys. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Thus, the Court construes

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Plaintiff’s letter (Dkt. No. 22) as a motion to obtain relief from the Court’s judgment dismissing

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his amended complaint. Pursuant to Federal Rule of Civil Procedure 60(b), “[o]n motion and just

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terms, the court may relieve a party or its legal representative from a final judgment, order or

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proceeding for the following reasons: . . . mistake, inadvertence, surprise, or excusable neglect . .

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. [or] any reason that justifies relief.” Fed. R. Civ. P. 60(b)(1). To determine whether a party

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acted with excusable neglect, district courts examine: (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 reason for

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the delay; and (4) whether the movant acted in good faith. See Briones v. Riviera Hotel &

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Casino, 116 F.3d 379, 381 (9th Cir. 1997) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs.

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Ltd. Partnership, 507 U.S. 380, 391 (1993)).

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In this case, Plaintiff has not demonstrated that he acted with excusable neglect. The

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Court dismissed Plaintiff’s amended complaint with prejudice after he failed to file a second

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amended complaint and failed to respond to an order to show cause regarding his failure to do so.
ORDER
C18-0909-JCC
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(See Dkt. No. 20.) The Court could have entered judgment against Plaintiff when he failed to

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timely file a second amended complaint—instead, the Court gave Plaintiff another chance to

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respond by ordering him to show cause why his amended complaint should not be dismissed

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with prejudice. (Id.) Plaintiff provides little explanation for why he failed to respond to the

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Court’s order to show cause. (See Dkt. No. 22.) Plaintiff’s conclusory statement regarding his

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physical condition does not justify his more than two months’ delay in responding to the Court’s

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order to show cause. Nor does it explain why Plaintiff was unable to file a second amended

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complaint. While Plaintiff does not appear to have brought this motion in bad faith, his inaction

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does not amount to excusable neglect under Rule 60.

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Based on the length of delay and reason for that delay, the Court concludes that

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Plaintiff’s failure to respond to the Court’s order to show cause does not represent excusable

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neglect. See Fed. R. Civ. P. 60(b). Nor does the Court believe there is some other reason that

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justifies vacating its judgment and reinstating Plaintiff’s amended complaint. Id. Therefore,

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Plaintiff’s motion to vacate the Court’s judgment (Dkt. No. 22) is DENIED.

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DATED this 22nd day of February 2019.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
C18-0909-JCC
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