Levy v. United States

1

NORMAN LEVY, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 22-cv-05009-JSC

United States District Court, N.D. California

August 28, 2023

ORDER RE: PLAINTIFF'S MOTION TO RE-OPEN AND VACATE JUDGMENT

RE: DKT. NO. 24

JACQUELINE SCOTT CORLEY, UNITED STATES DISTRICT JUDGE.

Plaintiff sued the United States for injuries he sustained while walking on the boardwalk at Ocean Beach on October 14, 2020. (Dkt. No. 1 ¶ 12.)^[1] On June 8, 2023, the Court dismissed the action without prejudice for failure to prosecute. (Dkt No. 22.) Before the Court is Plaintiff's motion to re-open and vacate judgment. (Dkt. No. 24.) Having carefully considered the arguments and briefing submitted, the Court concludes oral argument is unnecessary, see Civ. L R. 7-1(b), and DENIES Plaintiff's motion. Plaintiff has failed to demonstrate his entitlement to relief under Federal Rule of Civil Procedure 60(b)(1) and (b)(6).

BACKGROUND

After this case was filed on September 1, 2022, it was initially assigned to Judge Kim. (Dkt. No. 5.) Judge Kim issued an initial case management scheduling order on September 15, 2022, which required Plaintiff to file a case management statement by December 12, 2022. (Dkt. No. 6.) When Plaintiff failed to file the required case management statement, the clerk entered notice directing Plaintiff to file a statement as soon as possible. (Dkt. No. 11.) Plaintiff still did not do so. At the initial case management conference on December 19, 2022, Judge Kim scheduled a further case management conference and ordered a case management statement be filed by February 21, 2023. (Dkt. No. 12.) When Plaintiff again failed to file the required case management statement, the clerk entered notice directing Plaintiff to file a statement as soon as possible. (Dkt. No. 13.) Plaintiff then did file a case management statement. (Dkt. No. 14.) At the further case management conference on February 27, 2023, Judge Kim noted Plaintiff improperly served Defendant in Washington, D.C., but was still in the process of serving the U.S. Attorney's Office in the Northern District of California. (Dkt. No. 15.) Judge Kim issued an order setting a further case management conference for March 13, 2023, and requiring Plaintiff to file an updated case management statement by March 6, 2023. (Id.) When Plaintiff, for the third time, failed to file a timely case management statement, Judge Kim issued an order directing Plaintiff to show cause in writing by March 10, 2023, as to why the case should not be dismissed for failure to prosecute. (Dkt. No. 16.) The order to show cause explained: “[t]he Court has a full case load and does not have time to manage this case for Plaintiff. It is Plaintiff's Counsel's responsibility to proceed diligently.” (Id. at 1-2.) Plaintiff then filed the required case management statement. (Dkt. No. 17.)

Plaintiff failed to respond to Judge Kim's order to show cause or appear at the further case management conference on March 13, 2023. (Dkt. No. 18.) On the same day, Judge Kim reassigned the case and recommended dismissal without prejudice for failure to prosecute under Federal Rule of Civil Procedure 41(b). (Dkt. No. 19.) When the case was reassigned to this Court, Plaintiff's counsel submitted a declaration saying, “[d]ue to a clerical error the task and/or reminder to appear was misscalendared [sic] by my office and we missed the hearing.” (Dkt. No. 21 at 2.) Plaintiff's counsel claimed “[s]ervice upon defendant United States of America was completed March 10, 2022^[2].” (Id.) Plaintiff did not, however, object to Judge Kim's report and recommendation to dismiss the action. See Fed.R.Civ.P. 72(b)(2).

On June 8, 2023, this Court dismissed Plaintiff's action pursuant to Rule 41(b) and explained, despite counsel's claim of completed service, his declaration indicated he served the wrong United States Attorney's Office. (Dkt. No. 22.) Plaintiff's counsel served the Civil Process Clerk for the Central District of California, not the Northern District of California where this action was pending. (Dkt. No. 21 at 4.) See Fed. R. Civ. Pro. 4(i)(1)(A). As a result, Plaintiff had not yet effectuated service of process or otherwise diligently prosecuted the action. (Dkt. No. 22 at 2.) Accordingly, the Court dismissed the action without prejudice and entered judgment in favor of Defendant on June 9, 2023. (Dkt. Nos. 22, 23.) Plaintiff did not seek to alter the judgment by the 28-day deadline under Federal Rule of Civil Procedure 59(e).

In sum, Plaintiff failed to timely file three case management statements, respond to an order to show cause, attend a case management conference, properly serve Defendant on two separate occasions, or file proof of service once service was properly completed. Plaintiff now seeks relief from dismissal and judgment under Federal Rule of Civil Procedure 60(b)(1), or, in the alternative, Rule 60(b)(6). (Dkt. No. 24.)

DISCUSSION

I. Relief Under Federal Rule of Civil Procedure 60(b)(1)

The Court may relieve a party or its legal representative from a final judgment, order, or proceeding for “mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1). Plaintiff argues “[t]he judgment in this case is the very definition of ‘surprise'” without providing any explanation of how he was surprised. (Dkt. No. 24 at 6.) But Plaintiff cannot have been surprised by the dismissal without prejudice for failure to prosecute this action. Judge Kim's order to show cause of March 7, 2023, specifically directed Plaintiff to respond in writing as to why the action should not be dismissed for Plaintiff's repeated failure to follow court orders. (Dkt. No. 16 at 2.) Plaintiff did not do so. Nor did Plaintiff appear at the March 13, 2023 further status conference. Further, on March 13, 2023, Judge Kim issued a Report and Recommendation recommending dismissal for failure to prosecute. Plaintiff did not file an objection. Thus, dismissal was a near foregone conclusion, not a surprise.

Alternatively, Plaintiff argues the judgment should be vacated for excusable neglect. (Id.) “[F]or purposes of Rule 60(b), excusable neglect is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 394 (1993) (cleaned up). The determination of what sorts of neglect will be considered “excusable” is an equitable one. Id. at 395. The Court considers four enumerated factors in determining whether missing a filing deadline constitutes excusable neglect: the danger of prejudice to Defendant, length of delay and its potential impact on judicial proceedings, reason for delay including whether it was within the reasonable control of Plaintiff, and whether the movant acted in good faith. Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997).

1. Prejudice to Defendant

The first factor is prejudice to Defendant. Briones, 116 F.3d at 381. “The law presumes injury from unreasonable delay. However, this presumption of prejudice is a rebuttable one and if there is a showing that no actual prejudice occurred, that factor should be considered.” In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994). The prejudice to Defendant caused by Plaintiff's delay is insufficient to justify denial of relief under Rule 60(b)(1) because the delay has not impaired Defendant's ability to go to trial or threatened to interfere with the rightful disposition of this case. Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224-25 (9th Cir. 2000); see In re Eisen, 31 F.3d at 1453 (“Whether the prejudice is significant will depend on whether the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case.” (cleaned up)); Pierce v. United States, No. 15-CV-02811-JSC, 2017 WL 3058582, at *2 (N.D. Cal. July 19, 2017) (“To be prejudicial, the setting aside of a judgment or order must result in greater harm than simply delaying resolution of the case. For example, the delay must result in tangible harm such as loss of evidence, increased difficulties of discovery, or greater opportunity for fraud or collusion.” (cleaned up)). Because the only prejudice Defendant identifies from Plaintiff's conduct is a delay of the resolution of this case, the first factor weighs in favor of relief.

2. Length of Delay

The second factor is the length of delay and its potential impact on judicial proceedings. Briones, 116 F.3d at 381. Under Federal Rule of Civil Procedure 60(c), a Rule 60(b) motion must be made “within a reasonable time” and “no more than a year after entry of the judgment or order or the date of the proceeding.” Fed.R.Civ.P. 60(c). “What constitutes reasonable time depends upon the facts of each case, taking into consideration the interest in finality, the reason for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to the other parties.” Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981).

Here Plaintiff filed his motion for relief a month after the Court dismissed the action without prejudice for failure to prosecute. The Ninth Circuit has held a one-month delay is not prejudicial. Bateman, 231 F.3d at 1225. However, Plaintiff has been aware of the potential dismissal of this action since the order to show cause and recommendation to dismiss issued in March 2023, four months before Plaintiff filed the instant motion. (Dkt. Nos. 16, 19.) While four months is not in and of itself excessive, it is a period beyond that which courts generally excuse. See, e.g., M.D. by & through Doe v. Newport-Mesa Unified Sch. Dist., 840 F.3d 640, 643 (9th Cir. 2016), as amended (Nov. 18, 2016) (two-day delay); ...