McClellon v. Citigroup Global Markets Inc

Filing 31

ORDER denying Plaintiff's 29 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. C18-0978-JCC

CITIGROUP GLOBAL MARKETS, Inc.

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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. 29). Defendant opposes Plaintiff’s motion. (Dkt. No. 30.)

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

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2 at 2.) On July 2, 2018, Defendant removed the case to this Court. 1 (Dkt. No. 1.) On July 31,

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2018, Defendant moved to dismiss Plaintiff’s complaint for failure to state a claim (Dkt. No. 15.)

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On August 21, 2018, Plaintiff filed an amended complaint. (Dkt. No. 17), and the Court denied

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Defendant’s motion to dismiss as moot. (Dkt. No. 20.)

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On October 4, 2018, Defendant filed a motion to dismiss the amended complaint. (Dkt.

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No. 21.) Plaintiff did not respond to the motion. (See Dkt. No. 24.) On November 6, 2018, the

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Court granted Defendant’s motion to dismiss and granted Plaintiff leave to file a second

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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. 11.)
ORDER
C18-0978-JCC
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amended complaint. (Dkt. No. 16.) Plaintiff failed to file a second amended complaint.

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On December 6, 2018, the Court ordered Plaintiff to show cause why his case should not

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be dismissed with prejudice for failure to file a second amended complaint. (Dkt. No. 26.)

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Plaintiff never responded to the Court’s order to show cause. On January 2, 2019, the Court

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dismissed Plaintiff’s amended complaint with prejudice and entered judgment. (Dkt. Nos. 27,

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28.)

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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. 29.) 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. 29) 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 excusable neglect. The Court dismissed

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

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and failed to respond to an order to show cause regarding his failure to do so. (See Dkt. No. 20.)
ORDER
C18-0978-JCC
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The Court could have entered judgment against Plaintiff when he failed to timely file a second

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amended complaint—instead, the Court gave Plaintiff another chance to respond by ordering

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him to show cause why his amended complaint should not be dismissed with prejudice. (Id.)

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Plaintiff provides little explanation for why he failed to respond to the Court’s order to show

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cause. (See Dkt. No. 22.) Plaintiff’s conclusory statement regarding his physical condition does

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not justify his almost two-month delay in responding to the Court’s order to show cause. Nor

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does it explain why Plaintiff was unable to file a second amended complaint. While Plaintiff

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does not appear to have brought this motion in bad faith, his inaction does not amount to

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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 amend complaint. Id. Therefore,

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Plaintiff’s motion to vacate the Court’s judgment (Dkt. No. 29) 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
C18-0978-JCC
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