Bateman v. US. Postal Serv.

• Decision Date: 02 November 2000
• Docket Number: No. 99-15394,99-15394
• Citation: 231 F.3d 1220
• Parties: (9th Cir. 2000) WALTER BATEMAN, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE; WILLIAM J. HENDERSON, <A HREF="#fr1-1" name="fn1-1">1 Postmaster General, Defendants-Appellees, and AARON JOHNSON; BEN FUKUMITSU; DAVID BURNS; JOSE MALLARI, Defendants
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1220

231 F.3d 1220 (9th Cir. 2000)

WALTER BATEMAN, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE; WILLIAM J. HENDERSON, ¹ Postmaster General, Defendants-Appellees, and AARON JOHNSON; BEN FUKUMITSU; DAVID BURNS; JOSE MALLARI, Defendants.

No. 99-15394

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 26, 2000

Filed July 26, 2000

Amended November 2, 2000

Kelechi Charles Emeziem, Emeziem & Ogbu, Oakland, California, for the plaintiff-appellant.

Anne Norris Graham, United States Postal Service; New York, New York; Robert S. Mueller, III, United States Attorney, San Francisco, California; Gail Killefer, Chief, Civil Division, San Francisco, California; Alex G. Tse, Assistant United States Attorney, San Francisco, California; R. Andrew German, United States Postal Service, Washington, D.C.; for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding D.C. No. CV-97-00030-MMC

Before: B. Fletcher, Alarcon, and Hawkins, Circuit Judges.

Opinion by Judge Hawkins; Dissent by Judge Alarcon.

ORDER AMENDING OPINION AND DENYING REHEARING AND AMENDED OPINION

ORDER

Michael Daly Hawkins, Circuit Judge:

The Opinion filed on July 26, 2000, and appearing at 219 F.3d 1029 (9th Cir.2000), is amended as follows:

At page 1031, footnote 2, following the second sentence in the footnote, insert:

Counsel for the Postal Service may have had no legal duty to inform the court of Emeziem's absence; however, they clearly knew that Emeziem would be away for a significant amount of time. In the interest of fairness to their adversary and candor to the court, they should have disclosed this fact when asking the court to grant the motion for summary judgment as unopposed (or, better still, waited for the scheduled hearing on the summary judgment motion). Our comments on these actions, of course, have no bearing on the decision we reach today; we note them only because, at the risk of sounding naive or nostalgic, we lament the decline of collegiality and fair-dealing in the legal profession today, and believe courts should do what they can to emphasize these values.

At page 1034, delete the first full paragraph through the end of the third paragraph, beginning "Counsel for the Postal Service, on the other hand, skirted the boundaries of good faith[ ]" and concluding "[b]ut at the risk of sounding naive or nostalgic, we lament the decline of collegiality and fair-dealing in the legal profession, and we think courts should do whatever they can to reestablish the preeminence of these values."

The Petition for Rehearing is denied. Judge Alarcon would grant the petition for a rehearing for the reasons set forth in his Dissent.

OPINION

We concern ourselves here with a familiar issue in civil litigation: what constitutes "excusable neglect" within the meaning of Rule 60(b)(1) of the Federal Rules of Civil Procedure? For years, the common understanding was that this term only covered situations beyond an attorney's control, not negligence on the part of counsel. In Pioneer Investment Services Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 394 (1993), the Supreme Court altered this understanding. In the context of Rule 9006(b)(1) of the Federal Rules of Bankruptcy Procedure, which is nearly identical to Rule 60(b)(1), it held that "excusable neglect" covers "situations in which the failure to comply with a filing deadline is attributable to negligence." Id. at 395. It also established an equitable test to determine whether an attorney's neglect is excusable. We adopted this test for Rule 60(b)(1) cases in Briones v. RivieraHotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997).

In the case before us, Walter Bateman appeals the district court's denial of his motion for relief under Rule 60(b)(1). He argues that the district court did not apply the equitable test of Pioneer and Briones in deciding whether his attorney's failure to comply with a filing deadline constituted "excusable neglect." We agree and conclude that, under the correct legal standard, Bateman is entitled to relief under Rule 60(b)(1).

I. FACTS AND PROCEDURAL BACKGROUND

Bateman filed an action against his former employer, the U.S. Postal Service, alleging discrimination and retaliation under Title VII of the Civil Rights Act of 1964. The parties conducted discovery, and a trial date was set for October 26, 1998. In late July 1998, Bateman's attorney, Kelechi Emeziem, learned of a family emergency in Lagos, Nigeria and made plans to leave the country. He scheduled his flight to leave San Francisco on Monday, August 10, 1998, returning from Nigeria on Saturday, August 29, 1998.

On Thursday, August 6, four days before Emeziem was scheduled to leave, his legal assistant telephoned the Assistant United States Attorney ("AUSA") representing the Postal Service and informed him that Emeziem was leaving the country. Emeziem's assistant asked to cancel two depositions and also asked if the Postal Service would delay filing its motion for summary judgment, which it had earlier indicated would be filed at the conclusion of the depositions. The AUSA responded that he could not postpone filing the motion because of the proximity of the trial date and that, in fact, he was prepared to file the next day. The AUSA then suggested that Emeziem would have to contact the court if he wanted an extension of time to file a response.

The Postal Service filed its motion for summary judgment as planned on Friday, August 7 and noticed September 11 for the hearing date. The AUSA also faxed a letter to Emeziem's office that afternoon, stating that he could not postpone filing the motion and that he would not agree to an extension of time for Emeziem's response unless ordered by the court. Emeziem left for Nigeria on Monday, August 10, without filing a response or seeking an extension. At argument before this court, he explained that he was out of the office on Friday and Monday and that no one called to tell him about the motion.

The deadline for filing a response passed on August 21, while Emeziem was still out of the country. One week later,the Postal Service filed papers in the district court asking that its motion be granted as unopposed. These moving papers made no mention of Emeziem's absence from the country or his office's prior request to postpone the summary judgment process during his absence.² Emeziem returned to San Francisco on Saturday, August 29, 1998, but did not contact the district court or the government for some 16 days to explain his absence. Emeziem seeks to excuse this lapse based on his recovery from jet lag and the time it took to sort through the mail that had accumulated while he was away.

On September 3, 1998, the district court, unaware that Emeziem had ever left the country, issued an order vacating the hearing and granting summary judgment in favor of the Postal Service. Twelve days later, Emeziem wrote a letter to the court asking that it "rescind" the entry of summary judgment. He explained that he had been out of the country and was unaware that a motion for summary judgment had been filed. On September 29, 1998, the court issued an order denying Emeziem's request because he had not filed a proper motion for relief under Rule 60(b). Emeziem then filed a Rule 60(b) motion on November 5, which the district court denied on February 5, 1999. Emeziem timely appealed the denial on Bateman's behalf. We have jurisdiction under 28 U.S.C. 1291.

II. STANDARD OF REVIEW

We review for an abuse of discretion the district court's denial of a Rule 60(b) motion. See Briones, 116 F.3d at 380. A district court abuses its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact. See United States v. Washington, 98 F.3d 1159, 1163 (9th Cir. 1996).

III. ANALYSIS

Rule 60(b)(1) of Civil Procedure provides that a court may relieve a party or a party's legal representative from a final judgment on the basis of mistake, inadvertence, surprise, or excusable neglect. As discussed above, the Supreme Court held in Pioneer that "excusable neglect " covers negligence on the part of counsel. It then said that the determination of whether neglect is excusable is an equitable one that depends on 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. See Pioneer, 507 U.S. at 395.

In Briones, 116 F.3d at 381, we noted that Pioneer changed our law on excusable neglect. Before Pioneer, we had held that "ignorance of court rules does not constitute excusable neglect" and had applied a per se rule against the granting of relief when a party failed to comply with a deadline. See Briones, 116 F.3d 381, 382. After Pioneer, however, we recognized that the term covers cases of negligence, carelessness and inadvertent mistake. See id. at 381. We also adopted the equitable test articulated in Pioneer to determine whether neglect is "excusable" under Rule 60(b)(1). See id. We stated that the factors recited in Pioneer were not exclusive, but that they "provide a framework with which to determine whether missing a filing deadline constitutes`excusable' neglect." Id.

Bateman argues that the district court abused its discretion because it failed to conduct the equitable analysis laid out in Pioneer and Briones. We agree. In its order denying relief, the district court cited Pioneer, but only for the proposition that "clients must be held accountable for the acts and omissions of their attorneys." Pioneer, 507 U.S. at 396. The court did not acknowledge Pioneer's statement that "excusable neglect" includes cases of negligence, nor did it mention the equitable test established by Pioneer. The court also did not mention this court's...