Ochoa v. Von Lintig

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BARRY ERNEST OCHOA, Case No. 19cv346-MMA (JLB)

12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION FOR RELIEF FROM JUDGMENT AND REQUEST FOR 14 VON LINTIG, EXTENSION OF TIME TO 15 Defendant. RESPOND;

16 [Doc. No. 26] 17 DIRECTING CLERK OF COURT TO 18 REOPEN CASE 19 20 21 Plaintiff Barry Ernest Ochoa is a California state prisoner proceeding pro se in this 22 civil rights action. Plaintiff alleges that Defendant Von Lintig violated his Eighth 23 Amendment right to adequate medical care. See Doc. No. 14. Defendant Von Lintig 24 previously moved to dismiss Plaintiff’s claim pursuant to Federal Rule of Civil Procedure 25 12(b)(6). See Doc. No. 20. Plaintiff did not file a response and the Court granted 26 Defendant’s motion to dismiss as unopposed. See Doc. No. 23. The Court dismissed 27 Plaintiff’s claim without prejudice and directed the Clerk of Court to enter judgment 28 accordingly. See Doc. No. 24. Plaintiff now moves ex parte for relief from judgment 1 and requests an extension of time in which to file a response to Defendant Von Lintig’s 2 motion to dismiss. See Doc. No. 25. To date, Defendant has not filed an opposition to 3 Plaintiff’s motion. For the reasons set forth below, the Court GRANTS Plaintiff’s 4 motion. 5 DISCUSSION 6 A district court may grant a motion for relief from judgment if the moving party 7 can show, as relevant here, mistake, surprise, or excusable neglect. See Fed. R. Civ. P. 8 60(b)(1); Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985). Whether the Court 9 should grant relief “depends on at least four factors: (1) the danger of prejudice to the 10 opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) 11 the reason for the delay; and (4) whether the movant acted in good faith.” Bateman v. 12 United States Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000) (adopting standard to 13 determine excusable neglect as set forth in Pioneer Inv. Servs. Co. v. Brunswick Assocs. 14 Ltd., 507 U.S. 380, 395 (1993)). 15 Plaintiff alleges that his failure to file a response to Defendant’s motion to dismiss 16 was due to his mistake regarding the applicable rules, compounded by his disability and 17 resulting difficulty in preparing and submitting legal documents without assistance. This 18 merits relief under Rule 60(b)(1). See, e.g., Pioneer Inv. Srvcs. Co., 507 U.S. at 394. In 19 addition, the Court finds that Plaintiff appears to be acting in good faith. Thus, the 20 danger of prejudice to Defendant Von Lintig and the length of delay is outweighed by the 21 other relevant factors. 22 CONCLUSION 23 Based on the foregoing, the Court GRANTS Plaintiff’s motion and VACATES 24 the February 11, 2020 Order and Judgment dismissing this action. See Doc. Nos. 23, 24. 25 The Court DIRECTS the Clerk of Court to reopen the case. 26 Plaintiff must file a response to Defendant Von Lintig’s motion to dismiss on or 27 before April 3, 2020. 28 If Plaintiff responds, Defendant may file a reply on or before April 10, 2020. ] Upon completion of the briefing, the Court will once again take the motion under 2 ||submission without oral argument and issue a written ruling in due course. See SD 3 || CivLR 7.1.d.1; Fed. R. Civ. P. 78(b). 4 IT IS SO ORDERED. 5 || DATE: March 3, 2020 Vhth LTn- / hill 6 HON. MICHAEL M. ANELLO United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28