Cristian Cervantes v. Janet Napolitano

Ninth Circuit

Cristian Cervantes v. Janet Napolitano

636 F. App'x 958

CourtCourt of Appeals for the Ninth Circuit

DecidedFebruary 12, 2016

Docket14-55172

StatusUnpublished

This text of 636 F. App'x 958 (Cristian Cervantes v. Janet Napolitano) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cristian Cervantes v. Janet Napolitano, 636 F. App'x 958 (9th Cir. 2016).

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Opinion

MEMORANDUM *

Cristian Cervantes appeals the district court’s order denying his application for relief under Federal Rule of Civil Procedure 60. We reverse and remand with instructions.

1. The district court’s denial was based in part on finding “a slight danger of prejudice” to defendants that “may result” from the delay attributable to Cervantes’s neglect. This finding lacked “support in inferences that may be drawn from the record.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir.2010). The defendants did not oppose Cervantes’s application for relief, and at oral argument before this court counsel for defendants could not identify any actual prejudice arising from Cervantes’s neglect. “[T]he mere possibility of prejudice from delay, which is inherent in every case, is insufficient to require denial of a 60(b)(1) motion.” Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1225 (9th Cir.2000) (quoting Hibernia Nat'l Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1280 (5th Cir.1985)).

2. In light of the lack of prejudice, the district court’s finding of good faith, and the reasonably prompt filing of the Rule 60(b) application, a proper exercise of discretion required granting Cervantes’s application for relief. On remand, the district court shall enter an order providing a reasonable period of time for Cervantes to file a Second Amended Complaint.

REVERSED AND REMANDED WITH INSTRUCTIONS.

*

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3,

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MEMORANDUM *

Cristian Cervantes appeals the district court’s order denying his application for relief under Federal Rule of Civil Procedure 60. We reverse and remand with instructions.

1. The district court’s denial was based in part on finding “a slight danger of prejudice” to defendants that “may result” from the delay attributable to Cervantes’s neglect. This finding lacked “support in inferences that may be drawn from the record.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir.2010). The defendants did not oppose Cervantes’s application for relief, and at oral argument before this court counsel for defendants could not identify any actual prejudice arising from Cervantes’s neglect. “[T]he mere possibility of prejudice from delay, which is inherent in every case, is insufficient to require denial of a 60(b)(1) motion.” Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1225 (9th Cir.2000) (quoting Hibernia Nat'l Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1280 (5th Cir.1985)).

2. In light of the lack of prejudice, the district court’s finding of good faith, and the reasonably prompt filing of the Rule 60(b) application, a proper exercise of discretion required granting Cervantes’s application for relief. On remand, the district court shall enter an order providing a reasonable period of time for Cervantes to file a Second Amended Complaint.

REVERSED AND REMANDED WITH INSTRUCTIONS.

*

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3,

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636 F. App'x 958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cristian-cervantes-v-janet-napolitano-ca9-2016.

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