Opinion
No. C 09-01361 CW.
February 9, 2010
ORDER GRANTING PLAINTIFF'S MOTIONS FOR RELIEF FROM JUDGMENT AND FOR PERMISSION TO E-FILE
Plaintiff moves for relief from the judgment issued on November 25, 2009 and moves for permission to use the Court's electronic case filing system (ECF). Defendant EMC opposes only the motion for relief from judgment. The motions were taken under submission on the papers. Having considered all the papers filed by the parties, the Court grants the motions for relief from judgment and for permission to use the ECF system.
Claims against Defendant Golden Empire Mortgage were previously dismissed for failure to prosecute.
On September 30, 2009, the Court issued an Order dismissing Plaintiff's complaint with leave to amend within three weeks from the date of the order. Plaintiff did not file an amended complaint within the three week period. On November 5, 2009, EMC filed, under Federal Rule of Civil Procedure 41(b), a motion to dismiss the complaint with prejudice on the ground that Plaintiff had failed to comply with an order of the Court. On November 25, 2009, the Court issued an Order granting EMC's motion to dismiss. On the same date, judgment was entered in favor of EMC and against Plaintiff.
On December 9, 2009, Plaintiff filed the instant motions. Plaintiff indicates that, due to faulty mail service, she did not receive the Court's September 30 and November 25 Orders and only became aware of them when she used a friend's account to access the Court's ECF system. Plaintiff indicates that her faulty mail delivery problem will be remedied once she has access to the Court's ECF system. EMC opposes the motion on the ground that it was not filed within the ten-day period for filing motions under Federal Rule of Procedure 59(e) and because Plaintiff failed to provide any basis for granting the motion.
Prior to December 1, 2009, Rule 6 of the Federal Rules of Civil Procedure provided that, if the period for filing specified under the Rules was less than eleven days, intermediate Saturdays, Sundays and legal holidays were to be excluded. On December 1, 2009, Rule 6 was amended to provide that every day was to be counted in computing any time period specified under the Rules. Because the Court's judgment was entered on November 25, 2009, Saturdays, Sundays and legal holidays are excluded from counting the ten-day deadline for filing a motion under Rule 59. Excluding the intervening Saturdays, Sundays and the Thanksgiving holiday, Plaintiff's Rule 59 motion was filed within the ten-day period.
Rule 59(e) motions are interpreted as motions for reconsideration, and are appropriate if the district court "(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J, Multnomah County, Oregon v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), cert. denied, 512 U.S. 1236 (1994).
Although Plaintiff has not argued that there is newly discovered evidence, an intervening change in the law or clear error, because it would be inequitable to deny Plaintiff a decision on the merits of her claims because she did not receive the Court's Orders, the Court will grant the motion and will vacate the judgment. Within three weeks from the date of this order, Plaintiff must file an amended complaint in accordance with the instructions provided in the September 30, 2009 Order. If Plaintiff does not file an amended complaint within this time period, her complaint will be dismissed with prejudice.
Plaintiff has provided a declaration that she has read the requirements for e-filing provided in General Order 45 and that she is able to comply with those requirements. Therefore, her motion for permission to use the ECF system is granted.
CONCLUSION
Accordingly, Plaintiff's motion for relief from judgment is granted. The judgment is vacated and the case is re-opened. Plaintiff must file an amended complaint in accordance with the Court's September 30, 2009 Order within three weeks from the date of this Order. If Plaintiff does not file an amended complaint within this time period, her complaint will be dismissed with prejudice. Plaintiff's motion for permission to use the Court's ECF system is granted.
IT IS SO ORDERED.