Show Clubs of America, LLC v. Bank of Nova Scotia

127 F. App'x 383

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 4, 2005
• Docket: No. 03-16909
• Status: Published

Opinion

MEMORANDUM

*

Plaintiff appeals the order denying its motion for relief from judgment. Although defendant argues that the district court based that order on plaintiffs failure to demonstrate a meritorious claim, our review of the order suggests that the district court based its determination upon what the court perceived as plaintiffs failure to prosecute the action on a timely basis, in particular the failure to file a timely opposition to defendant’s motion to dismiss.

Defendant has not sought to defend the order on the basis that plaintiff failed to timely prosecute. Accordingly, we vacate and remand to allow the district court to evaluate plaintiffs motion under the standard set forth in TCI Group Life Insurance Plan v. Knoebber, 244 F.3d 691, 695-97 (9th Cir.2001), and in light of Pincay v. Andrews, 389 F.3d 853, 859-60 (9th Cir. 2004) (en banc).

Parties to bear their own costs.

VACATED 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.