1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JILL DONALD WATKINS, Case No.: 3:20-cv-717-L-MSB
12 Plaintiff,
13 v. ORDER GRANTING PLAINTIFF’S 14 DOLLAR TREE STORES, INC., et al., MOTION TO REOPEN CASE AND 15 Defendants. FOR AN EXTENSION OF TIME TO FILE AN AMENDED COMPLAINT 16 (DOC. NOS. 10 AND 11) 17 Pending before the Court is Plaintiff’s motion to reopen the case and for an 18 extension of time to file an amended complaint. (Doc. Nos. 10-11). Defendant filed an 19 opposition. (Doc. No. 14). Plaintiff replied. (Doc. No. 15). The Court decides the 20 matter on the papers submitted and without oral argument. See Civ. L. R. 7.1. For the 21 reasons stated below, the Court GRANTS the motion. 22 On December 16, 2020, the Court granted Defendant’s motion to dismiss with 23 leave to amend. (Doc. No. 9). Plaintiff had until December 23, 2020 to amend his 24 complaint. Id. Plaintiff did not do so. (See Docket). The case remained closed. Id. 25 On January 15, 2021, Plaintiff filed a motion to reopen the case and for an 26 extension of time to file an amended complaint under Federal Rules of Civil Procedure 27 6(b) and 60(b), arguing his counsel’s failure to timely file an amended complaint was due 28 1 to excusable neglect. (Doc. Nos. 10-11). Defendant argues the neglect is not excusable. 2 (Doc. No. 14). 3 “The determination of whether neglect is excusable is an equitable one that 4 depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the 5 length of the delay and its potential impact on the proceedings; (3) the reason for the 6 delay; and (4) whether the movant acted in good faith.” Laurino v. Syringa Gen. Hosp., 7 279 F.3d 750, 753 (9th Cir. 2002) (internal quotation marks and citation omitted); see 8 Pioneer Investment Services Company v. Brunswick Associates, 507 U.S. 380, 395 9 (1993); Pincay v. Andrews, 389 F.3d 853, 855-856 (9th Cir. 2004) (en banc).1 No single 10 factor is determinative. Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 n.2 (9th 11 Cir. 1997). The Court will address each factor. 12 Prejudice to Defendant 13 Defendant argues it will be “grossly prejudiced” if the Court grants Plaintiff’s 14 motion. (Doc. No. 14 at 6). Its argument rests on the need to defend against Plaintiff’s 15 claim - if the Court allows him to file an amended complaint.2 Id. But the need to defend 16 against a claim - and the costs associated with it - is the prejudice all defendants 17 encounter in civil lawsuits. It has nothing to do with Plaintiff’s failure to timely file the 18 amended complaint. The Court therefore rejects that argument. See Ahanchian v. Xenon 19 Pictures, Inc., 624 F.3d 1253, 1262 (9th Cir. 2010) (“at most, [the defendant] would have 20 won a quick but unmerited victory, the loss of which we do not consider prejudicial.”); 21 Bateman v U.S. Postal Serv., 231 F.3d 1220, 1225 (9th Cir. 2000) (loss of a quick victory 22 23
24 25 1 The test for whether neglect is excusable under Rule 6(b)(1)(B) is the same as under Rule 60(b)(1). Comm. for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 825 n.4 (9th 26 Cir. 1996); Speiser, Krause & Madole P.C. v. Ortiz, 271 F.3d 884, 888 (9th Cir. 2001). 27 2 In ruling on the motion to dismiss, the Court determined leave was justified under Federal Rule of Civil Procedure 15(a), rejecting Defendant’s futility argument. (See Doc. 28 1 and the need to reschedule a trial date were insufficient prejudice to justify denying 2 relief). 3 Defendant does not, for instance, argue there are lost witnesses, lapses of 4 memories, or difficulties locating evidence. See, e.g., Lal v. Cal., 610 F.3d 518, 527 (9th 5 Cir. 2010) (insufficient prejudice to warrant denying relief from judgment where there 6 was a wealth of evidence, including numerous witness statements, tape recorded 7 statements, and written transcripts of statements). Defendant also does not present 8 evidence to support its prejudice argument (i.e., a declaration from counsel explaining 9 how their client will be prejudiced). (See Doc. No. 14). This case is in its early stage. 10 Defendant will not suffer any significant prejudice. Overall, this factor weighs in 11 Plaintiff’s favor. 12 Length of the Delay and Its Potential Impact on the Proceedings 13 Plaintiff filed the motion to reopen the case on January 15, 2021 - 23 days after the 14 Court’s deadline to file an amended complaint. (See Doc. No. 9 at 5). That delay is short 15 in the context of civil lawsuits.3 16 Defendant also does not present an argument as to its potential (or actual) impact 17 on the case. Id. There is nothing in the record to suggest the delay impacted the case - 18 other than delay it for a mere 23 days. This case is at an early stage, and the Court has 19 not yet issued a scheduling order or set any litigation deadlines. The proceedings in this 20 case will not be significantly impacted by Plaintiff’s delay in filing his amended 21 complaint. This factor weighs in Plaintiff’s favor. Bateman, 231 F.3d at 1225 (granting 22 relief in a case where there was a month-long delay). 23 24 25 26 3 Defendant relies on a purported 30-day delay to support its argument. (Doc. No. 14 at 27 7). That time is based on the date the Court granted the motion to dismiss, December 16, 2020. Id. The Court does not consider the time up until the December 23, 2020 deadline 28 1 Reason for the Delay 2 Plaintiff’s reason for the delay is that his counsel failed to successfully update their 3 email address in the CM/ECF system - which impacted their ability to receive notice of 4 the Court’s order. (Doc. Nos. 10-11). 5 The local rules and procedures require counsel to keep their email address updated 6 on the docket and CM/ECF system. See Civ. L. R. 83.3(e) (“if the attorney has . . . [an] 7 email address on file and, if any of the information changes, the attorney must promptly 8 notify the Court.”); ECF Administrative Policies and Procedures, Section 1(f) (“an 9 attorney whose e-mail address . . . has changed must update the information through the 10 PACER website and file a timely notification of the changes.”)4 11 The email address Plaintiff’s counsel used for this case was hacked or otherwise 12 compromised.5 (See Doc. Nos. 10-11). Around the time Plaintiff filed his opposition to 13 Defendant’s motion to dismiss, his counsel sought to update the email address in the 14 CM/ECF system. (See Doc. No. 18, Declaration at 4). They accessed their CM/ECF 15 account to update the email address associated with it and were thereafter under the 16 mistaken assumption the update was successful. (Id.; Doc. No. 10, Exhibit A 17 (Declaration of Sallie Blackman) at 3). Plaintiff’s counsel successfully updated the email 18 address for other courts, including the U.S. Bankruptcy Court for the Southern District of 19 California, and received notices in those cases. (Doc. No. 18, Declaration at 4-5). 20 The reason is not great.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JILL DONALD WATKINS, Case No.: 3:20-cv-717-L-MSB
12 Plaintiff,
13 v. ORDER GRANTING PLAINTIFF’S 14 DOLLAR TREE STORES, INC., et al., MOTION TO REOPEN CASE AND 15 Defendants. FOR AN EXTENSION OF TIME TO FILE AN AMENDED COMPLAINT 16 (DOC. NOS. 10 AND 11) 17 Pending before the Court is Plaintiff’s motion to reopen the case and for an 18 extension of time to file an amended complaint. (Doc. Nos. 10-11). Defendant filed an 19 opposition. (Doc. No. 14). Plaintiff replied. (Doc. No. 15). The Court decides the 20 matter on the papers submitted and without oral argument. See Civ. L. R. 7.1. For the 21 reasons stated below, the Court GRANTS the motion. 22 On December 16, 2020, the Court granted Defendant’s motion to dismiss with 23 leave to amend. (Doc. No. 9). Plaintiff had until December 23, 2020 to amend his 24 complaint. Id. Plaintiff did not do so. (See Docket). The case remained closed. Id. 25 On January 15, 2021, Plaintiff filed a motion to reopen the case and for an 26 extension of time to file an amended complaint under Federal Rules of Civil Procedure 27 6(b) and 60(b), arguing his counsel’s failure to timely file an amended complaint was due 28 1 to excusable neglect. (Doc. Nos. 10-11). Defendant argues the neglect is not excusable. 2 (Doc. No. 14). 3 “The determination of whether neglect is excusable is an equitable one that 4 depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the 5 length of the delay and its potential impact on the proceedings; (3) the reason for the 6 delay; and (4) whether the movant acted in good faith.” Laurino v. Syringa Gen. Hosp., 7 279 F.3d 750, 753 (9th Cir. 2002) (internal quotation marks and citation omitted); see 8 Pioneer Investment Services Company v. Brunswick Associates, 507 U.S. 380, 395 9 (1993); Pincay v. Andrews, 389 F.3d 853, 855-856 (9th Cir. 2004) (en banc).1 No single 10 factor is determinative. Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 n.2 (9th 11 Cir. 1997). The Court will address each factor. 12 Prejudice to Defendant 13 Defendant argues it will be “grossly prejudiced” if the Court grants Plaintiff’s 14 motion. (Doc. No. 14 at 6). Its argument rests on the need to defend against Plaintiff’s 15 claim - if the Court allows him to file an amended complaint.2 Id. But the need to defend 16 against a claim - and the costs associated with it - is the prejudice all defendants 17 encounter in civil lawsuits. It has nothing to do with Plaintiff’s failure to timely file the 18 amended complaint. The Court therefore rejects that argument. See Ahanchian v. Xenon 19 Pictures, Inc., 624 F.3d 1253, 1262 (9th Cir. 2010) (“at most, [the defendant] would have 20 won a quick but unmerited victory, the loss of which we do not consider prejudicial.”); 21 Bateman v U.S. Postal Serv., 231 F.3d 1220, 1225 (9th Cir. 2000) (loss of a quick victory 22 23
24 25 1 The test for whether neglect is excusable under Rule 6(b)(1)(B) is the same as under Rule 60(b)(1). Comm. for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 825 n.4 (9th 26 Cir. 1996); Speiser, Krause & Madole P.C. v. Ortiz, 271 F.3d 884, 888 (9th Cir. 2001). 27 2 In ruling on the motion to dismiss, the Court determined leave was justified under Federal Rule of Civil Procedure 15(a), rejecting Defendant’s futility argument. (See Doc. 28 1 and the need to reschedule a trial date were insufficient prejudice to justify denying 2 relief). 3 Defendant does not, for instance, argue there are lost witnesses, lapses of 4 memories, or difficulties locating evidence. See, e.g., Lal v. Cal., 610 F.3d 518, 527 (9th 5 Cir. 2010) (insufficient prejudice to warrant denying relief from judgment where there 6 was a wealth of evidence, including numerous witness statements, tape recorded 7 statements, and written transcripts of statements). Defendant also does not present 8 evidence to support its prejudice argument (i.e., a declaration from counsel explaining 9 how their client will be prejudiced). (See Doc. No. 14). This case is in its early stage. 10 Defendant will not suffer any significant prejudice. Overall, this factor weighs in 11 Plaintiff’s favor. 12 Length of the Delay and Its Potential Impact on the Proceedings 13 Plaintiff filed the motion to reopen the case on January 15, 2021 - 23 days after the 14 Court’s deadline to file an amended complaint. (See Doc. No. 9 at 5). That delay is short 15 in the context of civil lawsuits.3 16 Defendant also does not present an argument as to its potential (or actual) impact 17 on the case. Id. There is nothing in the record to suggest the delay impacted the case - 18 other than delay it for a mere 23 days. This case is at an early stage, and the Court has 19 not yet issued a scheduling order or set any litigation deadlines. The proceedings in this 20 case will not be significantly impacted by Plaintiff’s delay in filing his amended 21 complaint. This factor weighs in Plaintiff’s favor. Bateman, 231 F.3d at 1225 (granting 22 relief in a case where there was a month-long delay). 23 24 25 26 3 Defendant relies on a purported 30-day delay to support its argument. (Doc. No. 14 at 27 7). That time is based on the date the Court granted the motion to dismiss, December 16, 2020. Id. The Court does not consider the time up until the December 23, 2020 deadline 28 1 Reason for the Delay 2 Plaintiff’s reason for the delay is that his counsel failed to successfully update their 3 email address in the CM/ECF system - which impacted their ability to receive notice of 4 the Court’s order. (Doc. Nos. 10-11). 5 The local rules and procedures require counsel to keep their email address updated 6 on the docket and CM/ECF system. See Civ. L. R. 83.3(e) (“if the attorney has . . . [an] 7 email address on file and, if any of the information changes, the attorney must promptly 8 notify the Court.”); ECF Administrative Policies and Procedures, Section 1(f) (“an 9 attorney whose e-mail address . . . has changed must update the information through the 10 PACER website and file a timely notification of the changes.”)4 11 The email address Plaintiff’s counsel used for this case was hacked or otherwise 12 compromised.5 (See Doc. Nos. 10-11). Around the time Plaintiff filed his opposition to 13 Defendant’s motion to dismiss, his counsel sought to update the email address in the 14 CM/ECF system. (See Doc. No. 18, Declaration at 4). They accessed their CM/ECF 15 account to update the email address associated with it and were thereafter under the 16 mistaken assumption the update was successful. (Id.; Doc. No. 10, Exhibit A 17 (Declaration of Sallie Blackman) at 3). Plaintiff’s counsel successfully updated the email 18 address for other courts, including the U.S. Bankruptcy Court for the Southern District of 19 California, and received notices in those cases. (Doc. No. 18, Declaration at 4-5). 20 The reason is not great. But it is at least understandable.6 The Ninth Circuit has 21 also found neglect to be excusable in worse situations. See Bateman, 231 F.3d at 1223- 22 23 4 Defendant did not cite these rules in support of its opposition. (See Doc. No. 14). 24 5 Plaintiff’s counsel did not use the other email address linked to their CM/ECF account. 25 (See Doc. No. 18, Declaration at 2-3). 6 Defendant’s reply brief was due over 10 days after Plaintiff attempted to update their 26 email address. (See Doc. No. 8). Arguably, they should have been put on notice of the 27 error given they would not have received notice of the reply to their new email address. See Civ. L. R. 7.1. But a reply brief is not required. Id. And this is only one factor in the 28 1 25 (reason for delay was travel, jet lag, and the time it took to sort through mail); Pincay, 2 389 F.3d at 858-60 (affirming a district court’s grant of a motion for extension of time to 3 file, although a paralegal’s mistake in misreading a rule and calendaring incorrect filing 4 deadlines was “egregious” and “one of the least compelling excuses that can be offered.”) 5 This factor does not weigh in favor of denying the motion. 6 Good Faith 7 “The good faith consideration goes to the absence of tactical or strategic motives, 8 not to the degree of negligence.” Pincay, 389 F.3d at 861 (Berzon, M., concurring). 9 The failure to timely file an amended complaint was due to neglect. There is 10 nothing in the record to suggest Plaintiff (or his counsel) acted in bad faith. They did not 11 engage in some willful act meant to secure an advantage over Defendant. See Bateman, 12 231 F.3d at 1225 (finding counsel’s “errors resulted from negligence and carelessness, 13 not from deviousness or willfulness”); Ahanchian, 624 F.3d at 1262 (finding counsel’s 14 “reliance on the calendaring mistake was not a bad-faith, post-hoc rationalization 15 concocted to secure additional time.”) It is notable that Plaintiff drafted the amended 16 complaint prior to the Court’s deadline. (See Doc. No. 6). The delay did nothing more 17 than postpone the case and risk his ability to prosecute it. 18 Plaintiff also filed his motion the day after discovering the mistake and reviewing 19 the Court’s order. (Doc. No. 10, Exhibit A (Declaration of Sallie Blackman) at 3). This 20 factor weighs in Plaintiff’s favor. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// I In conclusion, after considering the above factors, the Court finds Plaintiff met his 2 ||burden. The neglect was excusable and good cause exists. The Court therefore 3 ||GRANTS the motion.’ Plaintiff has until April 29, 2021 to file his amended complaint. 4 || Defendant has until the time set forth under Fed. R. Civ. P. 15(a) to file a response - if 5 any - to the amended complaint. 6 IT IS SO ORDERED. 7 ||Dated: April 23, 2021 1 fee fp 9 H . James Lorenz, 10 United States District Judge
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 58 ’ This decision furthers the strong interest in deciding cases on the merits. See Ahanchian, 624 F.3d at 1259.