MEMORANDUM
The district court held that Gravatt failed to show excusable neglect, citing [195]*195Engleson v. Burlington Northern Railroad Company, 972 F.2d 1038 (9th Cir.1992), for the proposition that “ignorance or carelessness on the part of a litigant or his attorney ... [are not] grounds for relief under Rule 60(b)(1).” Id. at 1043. The district court abused its discretion in failing to apply the equitable test for excusable neglect.
“[T]he 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 ... [gravity of the neglect] and its potential impact on the proceedings; (3) the reason for the [neglect]; and (4) whether the movant acted in good faith.” Bateman v. United States Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir.2000) (citing Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)).
In Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir.1997) (per curiam), we held that “Pioneer sets forth an equitable ‘framework’ for determining the question of excusable neglect in particular cases, and we will ordinarily examine all of the circumstances involved rather than holding that any single circumstance in isolation compels a particular result regardless of the other factors.” Id. at 382 n. 2. The district court’s failure to weigh the Pioneer factors was an abuse of discretion. See Bateman, 231 F.3d at 1224 (“The court would have been within its discretion if it spelled out the equitable test and then concluded that ... [the party moving for reconsideration] had failed to present any evidence relevant to the four factors. But it abused its discretion by omitting the correct legal standard altogether.”).
The Pioneer factors clearly weigh in favor of granting the motion. Gravatt’s lawyer’s neglect consisted of failure to meet filing obligations, failure to obey court orders, failure to respond to motions or pleadings and failure to file a statement of controverting facts in opposition to Paul Revere’s summary judgment motion. There is no evidence that Paul Revere was prejudiced by Gravatt’s lawyer’s neglect. The sole prejudice cited by the district court is the loss to Paul Revere of the opportunity to take the deposition of Gravatt’s attorney before her death. The finding was not made on the basis of evidence in the record, but rather a presumption of consequences based on defense counsel’s arguments. Neither the district court nor Paul Revere has explained, given application of the attorney-client and work product privileges, how the deposition could have been accomplished in the instant action or why the deprivation of the information sought would have created a tangible harm to Paul Revere. Moreover, it seems highly unlikely that a lawyer who is dying of cancer and has missed deadlines because of her illness would be able to disclose any information that would be helpful to Paul Revere. It is almost implausible that, given her circumstances, Gravatt’s lawyer was making strategic decisions not to file important documents on behalf of her client or heed court orders. Though the dissent claims that we, not Gravatt, attribute Vining’s neglect to her illness, Dissent at 3, Gravatt’s brief clearly demonstrates that Vining’s illness is the crux of his case for excusable neglect. See, e.g., Appellant’s Opening Br. at 8 (“The offer of proof [filed on September 20, 2001, by Gravatt’s attorney Cure] included a response to Paul Revere’s Statement of Facts, outlining some of the things that Vining should have (and perhaps would have) raised in responding to the summary judgment motions of Paul Revere if she had not been suffering from depression and mental impairments arising [196]*196from her undiagnosed metastatic cancer of the liver.”); see also id. at 8-9 (summarizing affidavits of attorneys who knew Vining, attesting to the fact that “ ‘something drastic happened to [Vining] at least the year before she died that caused her behavior to change so radically’ ”).
Reconsideration is of course a burden on the court, but the reason for the lawyer’s neglect was a serious, debilitating illness, which ultimately resulted in her death. Paul Revere’s assertion that the lawyer’s failings — which began when she became ill — were not due to her health condition but rather were part of a pattern of intentional conduct is simply not believable. Affidavits from the lawyer’s daughter and a doctor who reviewed her medical records support the conclusion that the lawyer’s neglect was due to fatal stomach and liver cancer, and Gravatt introduced evidence that she had always been a conscientious attorney before she fell ill. Similarly, there is no evidence of bad faith on the record. Gravatt’s lawyer told him she had made mistakes with his case but assured him she would try to fix them, and if that didn’t work, he should sue her for malpractice. Gravatt understandably followed his lawyer’s advice.
The district court overstated the significance of the fact that Gravatt’s case was decided on the merits, not by default judgment. The court granted Paul Revere’s summary judgment motion based only on its statement of facts. Gravatt was deprived of the benefit of having a lawyer introduce evidence to create a triable issue of material fact and defeat Paul Revere’s summary judgment motion. The dissent makes much of the fact that the district court’s summary judgment order “fills eighteen pages” and reflects a “methodical[ ] sifting through the entire record and analysis of] the evidence under controlling law.” Dissent at 197. The district court was commendably careful in its consideration of Paul Revere’s summary judgment motion, but there is a big difference between considering the motion sua sponte and doing so with the benefit of adversarial briefing. Counsel often will raise issues that may not be evident to the court, and even introduce additional evidence that might not yet be in the record, to survive an opponent’s summary judgment motion. In light of the fact that “the district court rejected some of Paul Revere’s contentions and acknowledged the weaker aspects of its decision,” id., one can only imagine how many more weaknesses would have been called to the court’s attention, had the court had the benefit of briefing by counsel for Gravatt.
The district court also denied Gravatt’s motion on grounds that it was not filed within a reasonable time, because he could have filed the motion earlier and Paul Revere was prejudiced by his unjustified delay in filing. Under rule 60(b)(1), motions for relief from judgment based on excusable neglect must be made “within a reasonable time,” and “not more than one year after the judgment.” Fed.R.Civ.P. 60(b).
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM
The district court held that Gravatt failed to show excusable neglect, citing [195]*195Engleson v. Burlington Northern Railroad Company, 972 F.2d 1038 (9th Cir.1992), for the proposition that “ignorance or carelessness on the part of a litigant or his attorney ... [are not] grounds for relief under Rule 60(b)(1).” Id. at 1043. The district court abused its discretion in failing to apply the equitable test for excusable neglect.
“[T]he 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 ... [gravity of the neglect] and its potential impact on the proceedings; (3) the reason for the [neglect]; and (4) whether the movant acted in good faith.” Bateman v. United States Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir.2000) (citing Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)).
In Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir.1997) (per curiam), we held that “Pioneer sets forth an equitable ‘framework’ for determining the question of excusable neglect in particular cases, and we will ordinarily examine all of the circumstances involved rather than holding that any single circumstance in isolation compels a particular result regardless of the other factors.” Id. at 382 n. 2. The district court’s failure to weigh the Pioneer factors was an abuse of discretion. See Bateman, 231 F.3d at 1224 (“The court would have been within its discretion if it spelled out the equitable test and then concluded that ... [the party moving for reconsideration] had failed to present any evidence relevant to the four factors. But it abused its discretion by omitting the correct legal standard altogether.”).
The Pioneer factors clearly weigh in favor of granting the motion. Gravatt’s lawyer’s neglect consisted of failure to meet filing obligations, failure to obey court orders, failure to respond to motions or pleadings and failure to file a statement of controverting facts in opposition to Paul Revere’s summary judgment motion. There is no evidence that Paul Revere was prejudiced by Gravatt’s lawyer’s neglect. The sole prejudice cited by the district court is the loss to Paul Revere of the opportunity to take the deposition of Gravatt’s attorney before her death. The finding was not made on the basis of evidence in the record, but rather a presumption of consequences based on defense counsel’s arguments. Neither the district court nor Paul Revere has explained, given application of the attorney-client and work product privileges, how the deposition could have been accomplished in the instant action or why the deprivation of the information sought would have created a tangible harm to Paul Revere. Moreover, it seems highly unlikely that a lawyer who is dying of cancer and has missed deadlines because of her illness would be able to disclose any information that would be helpful to Paul Revere. It is almost implausible that, given her circumstances, Gravatt’s lawyer was making strategic decisions not to file important documents on behalf of her client or heed court orders. Though the dissent claims that we, not Gravatt, attribute Vining’s neglect to her illness, Dissent at 3, Gravatt’s brief clearly demonstrates that Vining’s illness is the crux of his case for excusable neglect. See, e.g., Appellant’s Opening Br. at 8 (“The offer of proof [filed on September 20, 2001, by Gravatt’s attorney Cure] included a response to Paul Revere’s Statement of Facts, outlining some of the things that Vining should have (and perhaps would have) raised in responding to the summary judgment motions of Paul Revere if she had not been suffering from depression and mental impairments arising [196]*196from her undiagnosed metastatic cancer of the liver.”); see also id. at 8-9 (summarizing affidavits of attorneys who knew Vining, attesting to the fact that “ ‘something drastic happened to [Vining] at least the year before she died that caused her behavior to change so radically’ ”).
Reconsideration is of course a burden on the court, but the reason for the lawyer’s neglect was a serious, debilitating illness, which ultimately resulted in her death. Paul Revere’s assertion that the lawyer’s failings — which began when she became ill — were not due to her health condition but rather were part of a pattern of intentional conduct is simply not believable. Affidavits from the lawyer’s daughter and a doctor who reviewed her medical records support the conclusion that the lawyer’s neglect was due to fatal stomach and liver cancer, and Gravatt introduced evidence that she had always been a conscientious attorney before she fell ill. Similarly, there is no evidence of bad faith on the record. Gravatt’s lawyer told him she had made mistakes with his case but assured him she would try to fix them, and if that didn’t work, he should sue her for malpractice. Gravatt understandably followed his lawyer’s advice.
The district court overstated the significance of the fact that Gravatt’s case was decided on the merits, not by default judgment. The court granted Paul Revere’s summary judgment motion based only on its statement of facts. Gravatt was deprived of the benefit of having a lawyer introduce evidence to create a triable issue of material fact and defeat Paul Revere’s summary judgment motion. The dissent makes much of the fact that the district court’s summary judgment order “fills eighteen pages” and reflects a “methodical[ ] sifting through the entire record and analysis of] the evidence under controlling law.” Dissent at 197. The district court was commendably careful in its consideration of Paul Revere’s summary judgment motion, but there is a big difference between considering the motion sua sponte and doing so with the benefit of adversarial briefing. Counsel often will raise issues that may not be evident to the court, and even introduce additional evidence that might not yet be in the record, to survive an opponent’s summary judgment motion. In light of the fact that “the district court rejected some of Paul Revere’s contentions and acknowledged the weaker aspects of its decision,” id., one can only imagine how many more weaknesses would have been called to the court’s attention, had the court had the benefit of briefing by counsel for Gravatt.
The district court also denied Gravatt’s motion on grounds that it was not filed within a reasonable time, because he could have filed the motion earlier and Paul Revere was prejudiced by his unjustified delay in filing. Under rule 60(b)(1), motions for relief from judgment based on excusable neglect must be made “within a reasonable time,” and “not more than one year after the judgment.” Fed.R.Civ.P. 60(b). Whether Gravatt’s six-month delay “constitutes ‘reasonable time’ depends upon the facts of [his] 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 other parties.” Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir.1981) (per curiam); see also 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2866, at 382-92 (2d ed., 1995).
Applying the Ashford factors to this case, the interest in finality clearly weighs against granting Gravatt’s motion. However, as previously noted, the reason for the delay appears to have been his lawyer’s serious illness. Moreover, Gravatt [197]*197filed a malpractice claim against his lawyer because she told him to do so. He was justified in heeding his lawyer’s advice. It’s true Gravatt might have been able to learn about his lawyer’s illness earlier, but, in any event, there is no showing of the most important factor, prejudice. As discussed above, the record is insufficient to sustain the district court’s finding that the prejudice to Paul Revere was so significant that it warranted denying Gravatt’s motion.
For these reasons, we hold that the district court abused its discretion and vacate the order denying the motion for relief from judgment and remand with instructions to the district court to grant Gravatt’s rule 60(b)(1) motion.
REVERSED AND REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.