Opinion
2:12-CV-1088 JCM (CWH)
03-15-2013
THE UNITED STATES OF AMERICA for the use of BOMBARD MECHANICAL, LLC, Plaintiff(s), v. ALLIANCE MECHANICAL, INC., et al., Defendant(s).
ORDER
Presently before the court is plaintiff United States' motion for reconsideration under FRCP 60(b). (Doc. #33). No response has been filed.
I. Background
On June 25, 2012, plaintiff filed its complaint. (Doc. #1). On September 17, 2012, plaintiff filed a motion seeking an enlargement of time to serve defendant Alliance/Penta, a joint venture, and to serve defendant by way of publication. (Docs. #16, #17). Both of these motions were granted by the magistrate judge. (Doc. #18).
The magistrate judge granted a 60-day extension to complete service under Fed.R.Civ.P. 4, extending the deadline to December 24, 2012. (Doc. #18, 4:3-4).
On November 16, 2012 plaintiff moved for the entry of a clerk's default against defendant Alliance/Penta. (Doc. #29). However, due to improper proof of service and the expiration of the deadline to file such proof, the motion was denied and defendant Alliance/Penta was dismissed without prejudice. (Doc. #32).
Plaintiff now moves for reconsideration of that dismissal based on excusable neglect and/or mistake under FRCP 60(b). (Doc. #33, 3:2-3). Plaintiff claims he failed to attach the affidavit of publication, which is attached to the instant motion, because he believed "that the publisher would file the affidavit with the [c]ourt." (Doc. #33, 3:7-8).
Plaintiff's mistaken belief that the publisher would file the affidavit with the court was based on three factors. First, plaintiff is accustomed to practicing in state court. (Doc. #33, 3:9). Second, plaintiff used the same publisher it used here for many years, and in state court the publisher files the affidavit of publication automatically with the court. (Doc. #33, 3:9-12). Lastly, plaintiff did not discover that the publisher does not file the affidavit of publication automatically at the federal level until it contacted the publisher after receiving the court's order. (Doc. #33, 3:12-15).
II. Legal Standard
Under Rule 60(b), a court may relieve a party from a final judgment, order or proceeding only in the following circumstances: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief from the judgment. Stewart v. Dupnik, 243 F.3d 549, 549 (9th Cir. 2000); see also De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir. 2000) (noting that the district court's denial of a Rule 60(b) motion is reviewed for an abuse of discretion).
Excusable neglect is a flexible and equitable concept taking into account all relevant surrounding circumstances of the party's omission including at least four factors: "(1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith." Bateman v. U.S. Postal Service, 231 F.3d 1220, 23-24 (9th Cir. 2000); see also Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 392, 395 (1993) (created the four part equitable test for determining excusable neglect outlined above); see also Committee for Idaho's High Desert, Inc. v. Yost, 92 F.3d 814, 825 (9th Cir. 1996) (applied Pioneer's excusable neglect test to Fed.R.Civ.P. 6(b)); see also Briones v. Rivera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) (applied Pioneer's excusable neglect equitable test to Fed.R.Civ.P. 60(b)'s excusable neglect exception).
III. Discussion
The court analyzes the present instant motion under the four part excusable neglect test.
Allowing for reconsideration will not prejudice defendant, as it has not yet responded to service.
The length of delay is significant. The court extended the deadline for completion of service to December 24, 2012. (See doc. #18). That was nearly 50 days ago. Further, it has been more than 120 days since the complaint was filed. (Doc. #1); see also FED.R.CIV.P. 4(m).
The complaint was filed on June 25, 2012. (Doc. #1).
However, the court finds plaintiff's reason for delay sufficient to warrant reconsideration. Excusable neglect encompasses "omissions caused by carelessness." Lemoge v. U.S., 587 F.3d 1188, 1192 (9th Cir 2009)(quoting Pioneer Inv. Servs. Co., 507 U.S. at 394). Plaintiff's unfamiliarity with the publisher's filing practices in this court and its failure to confirm whether the affidavit of publication was filed falls within an omission "caused by carelessness." Id.
Last, there is no evidence that plaintiff acted in bad faith.
Therefore, in weighing these factors and given the flexible standard of excusable neglect, the court grants plaintiff's motion. Analysis under mistake is unnecessary.
IV. Conclusion
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff's motion for reconsideration (doc. #33) be, and the same hereby is, GRANTED. . . . . . . . . . . . .
IT IS FURTHER ORDERED that plaintiff's motion for entry of clerk's default (doc. #29) be, and the same hereby is, GRANTED as to defendant Alliance/Penta .
Plaintiff has filed proper proof of service. (See doc. # 34).
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UNITED STATES DISTRICT JUDGE