Winters v. Jordan

• Decision Date: 01 February 2012
• Docket Number: No. 2:09-cv-00522 JAM KJN PS,2:09-cv-00522 JAM KJN PS
• Court: U.S. District Court — Eastern District of California
• Parties: BRENT ALLAN WINTERS, et al., Plaintiffs, v. DELORES JORDAN, et al, Defendants.

BRENT ALLAN WINTERS, et al., Plaintiffs,

v.DELORES JORDAN, et al, Defendants.

No. 2:09-cv-00522 JAM KJN PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: February 1, 2012

FINDINGS AND RECOMMENDATIONS

Presently before the court are motions to dismiss plaintiffs' Third Amended Complaint filed by defendants Delores Jordan and David Silber (Dkt. Nos. 257, 258).¹ In addition to being named as a defendant in this action, Silber is also a private attorney who represents Jordan and two other defendants in this action, Virginia and Michael Armstrong. The court previously granted Jordan and Silber leave to file their motions to dismiss late, but also permitted plaintiffs to object to the court's grant of such leave. (Order, Feb. 18, 2011, Dkt. No. 256.) Accordingly, these findings and recommendations address the propriety of permitting to Jordan and Silber leave to file their motions to dismiss, as well as a motion for default judgmentthat plaintiffs filed in regards to Jordan.

The undersigned has considered the parties' submissions addressed to Jordan's and Silber's motions to dismiss, as well as those submissions pertaining to plaintiffs' objections to the grant of leave to file the motions. For the reasons that follow, the undersigned concludes that it is appropriate to consider Jordan's and Silber's motions to dismiss, which were filed late due to Silber's excusable neglect. Additionally, the undersigned recommends that Jordan's motion to dismiss be granted in part and denied in part, as explained below. The undersigned further recommends that Silber's motion to dismiss be granted and that all of plaintiff's claims alleged against Silber be dismissed with prejudice. Finally, the undersigned recommends that plaintiffs' motion for default judgment be denied as to Jordan.

I. CONSIDERATION OF JORDAN'S AND SILBER'S MOTIONS TO DISMISS

The court granted Jordan's and Silber's ex parte motions seeking leave to file late motions to dismiss, and plaintiffs object to the granting of such leave. Under the peculiar circumstances of this case, the relevant factors weighed to determine whether excusable neglect warrants relief from a filing deadline support a finding that Silber's failure to timely file the motions to dismiss was the result of excusable neglect. Accordingly, the undersigned concludes that Silber's excusable neglect supports the grant of leave to file those motions to dismiss pursuant to Federal Rule of Civil Procedure 6(b)(1)(B), and those motions will be considered on the merits. Due to the long and tortured history of this case, spanning over 300 docket entries to date, some relevant background is provided below.

On July 3, 2009, Silber appeared in this action on behalf of Jordan and filed Jordan's answer to plaintiffs' Second Amended Complaint (Dkt. No. 29). On July 6, 2009, Silber appeared on his own behalf and filed an answer to the Second Amended Complaint (Dkt. No. 30). Silber also filed answers to the Second Amended Complaint on behalf of his clients, defendants Virginia and Michael Armstrong (Dkt. Nos. 24, 28).

The court subsequently struck plaintiffs' Second Amended Complaint and orderedplaintiffs to file a further amended complaint, which would serve as "plaintiffs' last chance to comply" with the court's orders and relevant procedural rules. (Order, Aug. 24, 2009, Dkt. No. 56.) Plaintiffs subsequently filed their Third Amended Complaint (Dkt. No. 66).

In November 2009, Silber filed motions to dismiss the Third Amended Complaint on behalf of Virginia and Michael Armstrong (Dkt. Nos. 82-85).² However, Silber did not file motions to dismiss or answers to the Third Amended Complaint at that time. Plaintiffs did not seek a clerk's entry of default against Jordan or Silber, but filed a procedurally improper motion for default judgment that did encompass Jordan, among numerous other defendants (Dkt. No. 189).³

On February 17, 2011, the undersigned held a hearing addressing numerous motions, including plaintiffs' motion for default judgment (Dkt. No. 255). Silber appeared at the hearing seeking leave to file motions to dismiss the Third Amended Complaint on his and Jordan's behalf, citing his excusable neglect. That same morning, Silber filed ex parte applications seeking leave to file the subject motions, which appended the proposed motions to dismiss (Dkt. Nos. 253, 254). Silber's declarations in support of his requests, signed under penalty of perjury, represent that Silber had "just discovered that [he] had not filed a Responsive Pleading in this matter for [his] case or for the case against Delores Jordan." (Silber Decl. In Supp. of Jordan's Ex Parte Appl. ¶ 3 ("Silber Decl.").)⁴ Silber further declares that he had drafted responses to the Third Amended Complaint on Jordan's behalf and his own behalf, butthat "[d]ue to the amount of pleadings filed and the number of defendants [he] lost track of the fact that [he] had not actually filed the pleadings despite the fact that [he] had drafted them at the end of November 2009." (Id. ¶5.) Moreover, Silber declares: "During the last year I have been through a series of personal problems that included divorce from my wife, moving from my house in Texas and a series of other unfortunate events that caused me to lose track of the events in this matter."⁵ (Id. ¶ 6.)

Relevant here, Federal Rule of Civil Procedure 6(b) provides:

(b) Extending Time.

(1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time:

(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or

(B) on motion made after the time has expired if the party failed to act because of excusable neglect.

(2) Exceptions. A court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).

The undersigned concludes that although it presents a relatively close call, the peculiar circumstances of this case justify, on the basis of excusable neglect, relief pursuant to Rule 6(b)(1)(B). The undersigned considers the factors supporting such relief, and plaintiffs' primary objections, below.

Plaintiffs first object to the granting of any relief on the grounds that such relief would violate the limitation on extensions of time provided in Rule 6(b)(2). Plaintiffs appear toargue that Jordan's and Silber's requests for relief are premised on an assertion of "excusable neglect" and thus implicate Federal Rule of Civil Procedure 60(b)(1), which permits a court to "relieve a party or its legal representative from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect." In turn, Rule 60(c)(1) places a one-year time limit on motions made pursuant to Rule 60(b)(1), which runs from the date of entry of the subject judgment or order or the date of the subject proceeding. See Fed. R. Civ. P. 60(c)(1) ("A motion under Rule 60(b) must be made within a reasonable time--and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding."). Plaintiffs appear to argue that because Silber filed the requests for relief more than one year after the deadline for his and Jordan's response to the Third Amended Complaint, Silber's requests for relief violate Rule 60(c)(1).

The undersigned finds plaintiffs' argument premised on the interplay between Rule 6(b)(2) and Rule 60(c)(1) unpersuasive. In short, Jordan's and Silber's requests for relief do not implicate Rule 60(b) and, accordingly, the restrictions set forth in Rules 6(b)(2) and 60(c)(1) do not apply here. Relief granted pursuant to Rule 60(b) is relief from a "final judgment, order, or proceeding." Fed. R. Civ. P. 60(b) (emphasis added). The term "final" modifies not only the term "judgment," but also the terms "order" and "proceeding." See Fed. R. Civ. P. 60(b) advisory committee's notes to 1946 amend. ("The addition of the qualifying word 'final' emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief . . . ."); Kapco Mfg. Co. v. C & O Enters., Inc., 773 F.2d 151, 154 (7th Cir. 1985) (stating that "'final' in Rule 60(b) must modify 'order, or proceeding' as well as 'judgment,'" and that Rule 60(b) "is a method of reopening a closed case"). Here, neither Silber nor Jordan is seeking relief from a final judgment, final order, or final proceeding. Accordingly, the relief sought is not pursuant to Rule 60(b), and plaintiffs' argument premised on Rules 6(b)(2) and 60(c)(1) fails.

Plaintiffs also object on the grounds that Silber has not sufficiently demonstratedexcusable neglect. "The test for whether neglect is excusable under Rule 6(b)(1)(B) is the same as under Rule 60(b)(1)." Molina v. Potter, No. 10-CV-454 JLS (BGS), 2011 WL 1261547, at *1 (S.D. Cal. Apr. 5, 2011) (unpublished) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 392-93 (1993); and Comm. for Idaho's High Desert, Inc. v. Yost, 92 F.3d 814, 825 n.4 (9th Cir. 1996)). The Ninth Circuit Court of Appeals has stated that:

In evaluating whether neglect is excusable, a district court must consider the four factors established by the Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 113 S. Ct. 1489, 123 L.Ed.2d 74 (1993): "(1) the danger of prejudice to the non-moving party, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the moving party's conduct was in good faith."

Mendez v. Knowles, 556 F.3d 757, 765 (9th Cir. 2009) (quoting Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (en banc) (citing Pioneer Inv. Servs. Co., 507 U.S. at 395)). These four factors are not the only ones the court may consider. The Supreme Court has noted that "[a]lthough...