Opinion
No. 2:13-cv-01942-KJM-KJN
03-17-2016
ALLEN C. HASSAN, Plaintiff, v. CORELOGIC CREDCO, et al., Defendants.
ORDER
Allen Hassan seeks reconsideration of this court's order dismissing his lawsuit because he abandoned the litigation. The matter was submitted for decision without a hearing. As explained below, the motion is denied.
I. BACKGROUND
In September 2013, Hassan filed his complaint, ECF No. 1, which he amended in July 2014 following dismissal with leave to amend, see Order June 16, 2014, ECF No. 37; First Am. Compl., ECF No. 38. At the time he was not represented by separate counsel, but the docket of the case confirmed his self-representation through the Allen Hassan Law Office, and he was designated as an attorney to be noticed. His complaint alleged the United States Office of Foreign Assets Control improperly added his name to a list of designated terrorists, and as a result, several credit and consumer reporting agencies reported his terrorist status to a variety of banks and other lenders. See generally First Am. Compl., ECF No. 38. The result was his personal and professional ruin. Id.
The defendants who were not dismissed answered the complaint, ECF Nos. 43, 44, 46, 59, and the court issued a pretrial scheduling order in November 2014, ECF No. 67. In early 2015, Hassan did not respond to the defendants' discovery requests, which led to the filing of several motions to compel. See ECF Nos. 73, 74, 75, 76, 77. Hassan did not respond to the motions either. In February 2015, the assigned magistrate judge ordered Hassan to respond to the defendants' motions and show cause why the case should not be dismissed. ECF No. 78. The magistrate judge also ordered Hassan to appear in person at a hearing in March 2015, and warned him that his failure to comply could lead to sanctions, including the dismissal of his case. Id.
Hassan did not respond to the order and did not appear at the hearing. See Minutes, ECF No. 82. After considering the factors identified by the Ninth Circuit in Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992), the magistrate judge recommended the case be dismissed with prejudice. ECF No. 83. Hassan responded with objections, arguing his actions had led to no unreasonable delay, Objections 2-3, ECF No. 87 (citing, inter alia, Nealy v. Transp. Maritima Mexicana, S.A., 662 F.2d 1275, 1280 (9th Cir. 1980)), and protesting that he had not received the magistrate judge's orders due to, in his words, a "Systems Failure," id. at 3-4. He also requested lenient treatment in light of his pro se status, upcoming mediation, medical difficulties, recent charges against him by the California Medical Board, and an otherwise busy schedule. Id. at 4-6. He reported his staff would complete responses to the defendants' outstanding discovery requests within about a week. Id. at 6. But he did not submit discovery responses as promised.
On April 20, 2015, this court adopted the magistrate judge's findings and recommendations in full. ECF No. 100. In response to Hassan's objections, the court noted that although he was not represented by separate counsel in this action, he was an attorney and had been able to use the CM/ECF system without complaint. Id. at 2. The court also found Hassan had offered no explanation for his failure to respond to a single discovery request and had not sought extensions of time to address personal emergencies. Id. The action was dismissed with prejudice and judgment was entered. Id. at 3; Judgment, ECF No. 101.
Hassan filed an appeal, which was dismissed as untimely. ECF No. 105 (citing 29 U.S.C. § 2107(b), United States v. Sadler, 480 F.3d 932, 937 (9th Cir. 2007)). On January 29, 2016, Hassan moved for reconsideration in this court, now represented by a separate attorney. ECF No. 107. The defendants opposed the motion. ECF Nos. 108, 109, 111, 112, 113. No reply brief was filed.
II. LEGAL STANDARD
As a preliminary matter, although styled as a general motion for reconsideration, Hassan's briefing rightly relies on Federal Rule of Civil Procedure 60(b). See Mem. P. & A. at 7-10, ECF No. 107-1. Under that rule, a district court may relieve a party from a final judgment for several reasons, including mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, voidness, satisfaction, or "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(1)-(6). The court's decision on a motion for relief under Rule 60(b) is a matter of discretion. Lemoge v. United States, 587 F.3d 1188, 1191-92 (9th Cir. 2009).
Motions under Rule 60(b) must be brought within a "reasonable time," and if justified on the basis of mistake, inadvertence, surprise, neglect, new evidence, or fraud, a "reasonable time" cannot exceed one year. Fed. R. Civ. P. 60(c). The length of a "reasonable time" differs from case to case and depends on the reasons offered for the delay, the moving party's practical ability to learn the basis of the court's decision, any prejudice that might result to the other litigants, and the general interest in the finality of litigation. Lemoge, 587 F.3d at 1196-97.
When, as here, a person requests relief from a judgment that was the result of his or her failure to meet a deadline, the court must apply a four-part test to determine whether the failure may be described as "excusable neglect." Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010). The court must examine "(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." Id. The court's decision is "an equitable one, taking account of all relevant circumstances." Lemoge, 587 F.3d at 1192 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs., Ltd. P'ship, 507 U.S. 380, 395 (1993)). This inquiry overlaps the court's consideration of a "reasonable time" under Rule 60(c). See id. at 1196-97 (considering the length of a "reasonable time" as the "second factor" of the determination of excusable neglect).
Finally, Rule 60(b) allows a court to reconsider its prior orders and correct its own errors. Fid. Fed. Bank, FSB v. Durga Ma Corp., 387 F.3d 1021, 1024 (9th Cir. 2004). But "a Rule 60(b)(1) reconsideration motion should not merely present arguments previously raised, or which could have been raised in the original briefs." San Luis & Delta-Mendota Water Auth. v. U.S. Dep't of Interior, 624 F. Supp. 2d 1197, 1208 (E.D. Cal. 2009), aff'd, 672 F.3d 676 (9th Cir. 2012).
III. DISCUSSION
Hassan requests relief on the basis of his excusable neglect, inadvertence, or mistake. See Mem. P. & A. at 8. He explains it was never his intention to be anything more than a pro se litigant. Id. He acknowledges he is a licensed attorney, but clarifies that at the time he filed his lawsuit he was first and foremost a practicing physician, not a lawyer, and he undertook self-representation in desperation. Hassan Decl. ¶ 11, ECF No. 107-2. In any event, he emphasizes that he was eighty years old at the time and suffering personal hardship. Mem. P. & A. at 8. In light of these circumstances, he suggests monetary or evidentiary sanctions would have been a more appropriate remedy than outright dismissal. Id. at 9-10.
The motion cannot be granted on these grounds. First, it was not brought within a "reasonable time," as required by Rule 60(c). At issue here is the delay between April 20, 2015, when judgment was entered, and January 29, 2016, when Hassan brought this motion. A delay of this length is not necessarily unreasonable, see, e.g., Lemoge, 587 F.3d at 1197 (a seven-month delay was reasonable), but the circumstances of this case do not support Hassan's position. The similarity between this motion and his objections to the magistrate judge's findings and recommendations show he was aware of the basis of this court's order and the judgment. Compare Objections at 3-6 (requesting treatment as a pro se litigant, advocating for a lesser sanction than dismissal, and emphasizing traumatic personal and professional circumstances) with Mem. P. & A. at 1-6 (emphasizing traumatic personal and professional circumstances) and id. at 8-10 (requesting treatment as a pro se litigant and advocating for a lesser sanction than dismissal). His motion also presents no explanation for his delay. It cannot be ascribed to continued medical problems, which Hassan asserts were successfully addressed in 2011. See Mem. P. & A. at 5:10-13. He also appears to suggest that proceedings before the California Medical Board prevented him from advancing his case, but he does not explain how these proceedings prevented him from actively litigating in 2015 and 2016. See id. at 4-6. Granting his motion would also prejudice the defendants, who to this day have received no discovery responses at all.
Second, Hassan has not demonstrated he is entitled to relief under the substantive test of Rule 60(b). The four-part test described in Ahanchian and Lemoge does not favor Hassan's motion. Should the motion be granted, the defendants will likely suffer the costs of delayed, uncertain, and stale discovery concerning events that occurred as long as fifteen years ago. See Mem. P. & A. at 3-5. As discussed in the previous paragraph, Hassan has not shown his lengthy delay in seeking relief from judgment was reasonable. His explanations for his failure to meet discovery deadlines are only that he had no calendaring system and expected to receive physical rather than electronic copies of this court's orders. See Hassan Decl. ¶ 12. But as described in the court's order adopting the magistrate judge's findings and recommendations, this explanation lacks persuasive force. See Order Apr. 20, 2015, ECF No. 100. Hassan used the CM/ECF system and never protested electronic service. Id. at 2. He informed neither the court nor the defendants of his personal emergencies, he requested no continuances, and he did not consult with opposing counsel about the case schedule or their discovery requests.
Third, Hassan's motion essentially reiterates the arguments he raised in objection to the magistrate judge's findings and recommendations. The court could not subscribe to those arguments at that stage, and cannot now. The magistrate judge's findings and recommendations weighed dismissal under the analysis described by the Ninth Circuit's decision in Ferdik v. Bonzelet, 963 F.2d at 1260-61, and concluded dismissal was an appropriate sanction. In the face of Hassan's silence, both in response to discovery requests and the magistrate judge's orders, the court finds again that dismissal was an appropriate sanction.
IV. CONCLUSION
The motion is DENIED. This order resolves ECF No. 107.
IT IS SO ORDERED. DATED: March 17, 2016.
/s/_________
UNITED STATES DISTRICT JUDGE