United States District Court, D. Arizona
DOMINIC W. LANZA, UNITED SLATES DISTRICT JUDGE.
before the Court is Defendants' Rule 60 Motion for Relief
from This Court's December 6, 2018 Order (Doc. 29). For
the following reasons, the motion is denied as moot in part
and granted in part.
December 6, 2018, the Court issued an Order noting that the
deadline for filing dispositive motions had expired and no
dispositive motions were pending, and therefore ordering the
parties to file by December 20, 2018 a joint status report
indicating the estimated length of trial and proposing at
least two dates on which they would be available to proceed
to trial. (Doc. 27.)
December 14, 2018, the two remaining Defendants in this
action, Maureen Johnson and Nick Salyer, both represented by
the same counsel, filed the present motion, explaining that
the dispositive motion deadline had been missed due to a
calendaring error and requesting (1) that the Court's
December 6, 2018 Order be set aside, and (2) that Defendants
be afforded the opportunity to file a dispositive motion,
which was attached to the Rule 60 Motion as Exhibit A. (Doc.
29 at 6.)
December 20, 2018, Defendants timely filed the joint status
report ordered by the Court. (Doc. 31.) Because Defendants
have already complied with the Court's December 6, 2018
Order, the motion is denied as moot to the extent that
Defendants requested that the December 6, 2018 Order be set
aside. The remainder of this Order considers Defendants'
request for an extension of the dispositive motion deadline.
60(b)(1) of the Federal Rules of Civil Procedure provides
that “[o]n motion and just terms, the court may relieve
a party or its legal representative from a final judgment,
order, or proceeding [due to] mistake, inadvertence,
surprise, or excusable neglect.” Rule 6(b)(1)(B) of the
Federal Rules of Civil Procedure provides that “[w]hen
an act may or must be done within a specified time, the court
may, for good cause, extend the time . . . on motion made
after the time has expired if the party failed to act because
of excusable neglect.” Here, although Defendants framed
their motion as one seeking relief from the Court's
December 6, 2018 Order, the main thrust of the motion is to
request an extension of the dispositive motion deadline, and
therefore the applicable Rule is 6(b)(1)(B), not 60(b)(1).
Nevertheless, the standard for relief is the same for both
rules, as both require a determination of whether there has
been “excusable neglect.”
Supreme Court has explained that “excusable
neglect” can encompass mistakes and carelessness:
“Congress plainly contemplated that the courts would be
permitted, where appropriate, to accept late filings caused
by inadvertence, mistake, or carelessness, as well as by
intervening circumstances beyond the party's
control.” Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship, 507 U.S. 380, 388 (1993).
the neglect is “excusable” is a flexible
standard, “at bottom an equitable one, taking account
of all relevant circumstances surrounding the party's
omission.” Id. at 395. At a minimum, courts
assessing whether neglect is “excusable” must
consider four factors: “ the danger of prejudice to
the [non-moving party],  the length of the delay and its
potential impact on judicial proceedings,  the reason for
the delay, including whether it was within the reasonable
control of the movant, and  whether the movant acted in
good faith.” Id. Failure to consider all four
factors constitutes an abuse of discretion. Lemoge v.
United States, 587 F.3d 1188, 1192-93 (9th Cir. 2009).
No. single factor is determinative. Bateman v. U.S.
Postal Serv., 231 F.3d 1220, 1224 (9th Cir. 2000);
Briones v. Riviera Hotel & Casino, 116 F.3d 379,
382 n.2 (9th Cir. 1997).
assessing whether a failure to act was caused by
“excusable neglect, ” a court may not impose per
se rules. Pincay v. Andrews, 389 F.3d 853, 855 (9th
Cir. 2004) (“We now hold that per se rules are not
consistent with Pioneer . . . .”). There can
be “no rigid legal rule against late filings
attributable to any particular type of negligence.”
Id. at 860 (affirming that a paralegal's
calendaring error was “excusable negligence.”).
Even when the reason for the delay is weak, where the
equities favor excusing the negligence, the court must do so.
Bateman, 231 F.3d at 1224-25 (reason for delay was
travel, jet lag, and the time it took to sort through mail).
district court has considered and weighed all four
Pioneer factors, and any other factors it deems
appropriate on a case-by-case basis, the court has broad
discretion to grant or deny the motion. Pincay, 389
F.3d at 859 (“[T]he decision whether to grant or deny
an extension of time . . . should be entrusted to the
discretion of the district court because the district court
is in [the best position] to evaluate factors such as whether
the lawyer had otherwise been diligent, the propensity of the
other side to capitalize on petty mistakes, the quality of
representation of the lawyers . . ., and the likelihood of
injustice if the appeal was not allowed.”).