United States District Court, D. Arizona
PRELIMINARY ORDER AND OPINION [Re: Motion at Docket 65]
JOHN W. SEDWICK, District Judge.
I. PRELIMINARY NATURE OF THIS ORDER
This order sets forth the court's preliminary view of the motion at docket 65. It is not a final decision and the motion remains pending for disposition after the court hears oral argument which is presently set for June 12, 2014. The court may, or may not, adopt all or portions of this order as the rationale for its disposition of the motion. This order is intended to assist counsel in preparing for oral argument. It does not authorize the filing of any additional motion papers.
II. MOTION PRESENTED
At docket 65, plaintiff Michael James Rich filed a "motion for reinstatement of civil action." At docket 66, defendants Wexford Health Sources, Inc.; William C. Stonecipher, D.O.; Ronald G. Williams, M.D.; Malcolm G. Wilkinson, M.D.; and Becky Payne (collectively, "defendants") opposed. Rich did not file a reply. Oral argument was held on June 12, 2014.
Rich filed his complaint pro se while he was incarcerated. On January 7, 2011, the court ordered him, under Local Rule of Civil Procedure 83.3(d), to keep the court advised of his mailing address and warned that his failure to do so would subject his claims to dismissal. On September 12, 2012, he filed a notice of change of address indicating that he had been released from prison. One week later, Richard D. Lyons and Dan M. Durrant of the law firm Gillespie, Shields & Durrant ("GSD") entered an appearance as Rich's counsel.
On April 5, 2013, Lyons, who was then working for a new law firm, filed a motion to withdraw as Rich's counsel. The motion stated that Rich's fee agreement was with GSD, that GSD had Rich's physical file, and that GSD had "expressed a desire to continue representing Plaintiff as co-counsel with other attorneys and is actively seeking co-counsel in that regard." The magistrate judge granted Lyons' motion on April 12 and ordered all future pleadings and orders to be served on Rich directly instead of on Durrant. The magistrate judge ordered Rich to notify the court within 30 days whether GSD would continue to represent him.
After the magistrate judge's April 12 order to Rich was returned as undeliverable, the magistrate judge ordered Durrant [at docket 58] to notify the court by August 23 whether he continued to represent Rich. Durrant did not respond.
The magistrate judge recommended dismissal of Rich's complaint at docket 60. This court, at docket 61, dismissed Rich's complaint without prejudice pursuant to Federal Rule of Civil Procedure 41(b) as a sanction against Rich for violating the court's January 2011 order to keep the court advised of his address. About three months later Rich, through counsel at GSD, filed the present "motion for reinstatement of civil action."
IV. STANDARD OF REVIEW
Rich argues that his case was dismissed due to his counsel's "excusable neglect." As defendants correctly note, Rich's motion is properly characterized as a Rule 60(b)(1) motion for relief from a judgement or order. Rule 60(b)(1) motions are addressed to the discretion of the court. To determine whether a party's conduct constitutes excusable neglect, courts apply the four-factor Pioneer-Briones test, examining: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. These four factors are not exclusive; whether neglect is excusable is an equitable determination and all relevant circumstances must be considered. Because Rule 60(b) is remedial in nature, it must be liberally applied.
A. Prejudice to ...