Navarrette v. Department of Homeland Security

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 TOMMY NAVARRETTE aka Case No.: 22cv006-LL-AHG Mr. T. Navarrette EL, [12] ORDER: Plaintiff, [13] vs. (1) ADOPTING REPORT & [14] RECOMMENDATION GRANTING ROBIN WREN, 15 PLAINTIFF’S MOTION TO SET Defendant. ASIDE JUDGMENT BASED ON [16] EXCUSABLE NEGLECT [ECF No. 17 38]; [18] (2) GRANTING PLAINTIFF’S 19 MOTION TO SET ASIDE JUDGMENT BASED ON [20] EXCUSABLE NEGLECT [ECF No. 21 37]; [22] (2) OVERRULING DEFENDANT’S 23 OBJECTIONS [ECF No. 39]; and [24] (3) RESETTING DEADLINE FOR 25 PLAINTIFF TO FILE OPPOSITION TO DEFENDANT’S MOTION TO [26] DISMISS [28] 1 Before the Court is Plaintiff Tommy Navarette’s (“Plaintiff”) Motion to Set Aside 2 Motion to Dismiss, and, if Necessary, Default Judgment, Case Dismissal, for Mistake, 3 Inadvertence, and Excusable Neglect. ECF No. 37, Motion to Set Aside Judgment 4 (“Motion” or “Mot.”). The Report & Recommendation (“R&R”) issued by United States 5 Magistrate Judge Allison H. Goddard recommends that the Court grant Plaintiff’s Motion 6 to Set Aside Judgment based on mistake and excusable neglect and reset the deadline for 7 Plaintiff to file an opposition to Defendant Robin Wren’s (“Defendant”) motion to dismiss 8 [ECF No. 26]. ECF No. 38. Defendant filed an objection to the R&R. ECF No. 39. For the 9 reasons discussed below, the Court ADOPTS the R&R IN ITS ENTIRETY, GRANTS 10 Plaintiff’s Motion, OVERRULES Defendant’s objections, and RESETS the deadline for 11 Plaintiff to file an opposition to Defendant’s motion to dismiss. 12 I. BACKGROUND 13 This Order incorporates by reference the thorough and accurate recitation of the 14 procedural history underlying the instant Motion contained in Magistrate Judge Goddard’s 15 R&R. See ECF No. 38 at 2–3. 16 II. LEGAL STANDARD 17 A. Objections to the Report and Recommendation 18 As set forth by 28 U.S.C. § 636 (b) and Rule 72(b) of the Federal Rules of Civil 19 Procedure, a district judge must “make a de novo determination of those portions of the 20 report or specified proposed findings or recommendations to which objection is made.” 28 21 U.S.C. § 636 (b)(1)(C); Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 22 amendment. The Court “may accept, reject, or modify, in whole or in part, the findings or 23 recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1). The district court 24 need not conduct de novo review of any findings and recommendations to which no 25 objections are filed. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 26 (en banc) (“Neither the Constitution nor the [Federal Magistrates Act] requires a district 27 judge to review, de novo, findings and recommendations that the parties themselves accept 28 as correct.”). 1 B. Setting Aside Judgment 2 Rule 60(b) allows a court to set aside a judgment where one or more of the following 3 is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered 4 evidence which by due diligence could not have been discovered before the court's 5 decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has 6 been satisfied, released, or discharged; or (6) any other reason justifying relief. Fed. R. Civ. 7 P. 60 (b). In the Ninth Circuit, “[o]ur starting point is the general rule that default judgments 8 are ordinarily disfavored. Cases should be decided upon their merits whenever reasonably 9 possible.” NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 616 (9th Cir. 2016) (quoting Eitel 10 v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986)). 11 “Excusable neglect ‘encompasses situations in which the failure to comply with a 12 filing deadline is attributable to negligence,’ . . . and includes ‘omissions caused by 13 carelessness.’” Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009) (quoting 14 Pioneer Inv. Servs. Co. v. Brunswick Assocs., Ltd. Partnership, 507 U.S. 380, 388 , 394 15 (1993)). To determine whether neglect is excusable, courts consider the four Pioneer 16 factors: (1) the danger of prejudice to the opposing party, (2) the length of the delay and its 17 potential impact on judicial proceedings, (3) the reason for the delay, including whether it 18 was within the reasonable control of the movant, and (4) whether the movant acted in good 19 faith. See Pioneer, 507 U.S. at 395 ; see also Briones v. Riviera Hotel & Casino, 116 F.3d 20 379, 381 (9th Cir. 1997) (“the equitable test set out in Pioneer applies to Rule 60(b)”). 21 However, these factors are “not an exclusive list.” Briones, 116 F.3d at 381 . “The 22 determination of whether neglect is excusable ‘is at bottom an equitable one, taking 23 account of all relevant circumstances surrounding the party's omission.’” Lemoge, 587 F.3d 24 at 1192 (quoting Pioneer, 507 U.S. at 395 ). In addition, mistake and excusable neglect can 25 be analyzed together. TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691 , 696 (9th Cir. 26 2001), overruled on other grounds in Delgado v. Dempsey's Adult Care Homes, LLC, 2023 27 WL 3034263 (9th Cir. Apr. 21, 2023). 28 / / / 1 III. DISCUSSION 2 Plaintiff’s Motion moves to set aside the entry of judgment on the basis of mistake 3 and excusable neglect pursuant to Rule 60(b)(1). See Mot. at 2. Defendant argues that 4 Plaintiff’s failure to timely file an opposition to the motion to dismiss was not due to 5 excusable neglect and further states that it would be futile to reopen this case because 6 Plaintiff’s claim cannot survive a motion to dismiss. ECF No. 39 at 2–4. 7 A. Pioneer Factors 8 To determine whether a party’s failure to meet a deadline constitutes “excusable 9 neglect” under Rule 60(b)(1), courts consider the four Pioneer factors. Pioneer, 507 U.S. 10 at 395 . The Court addresses each of these factors in turn. 11 1. Prejudice to Defendant 12 The first Pioneer factor examines the danger of prejudice to the opposing party if 13 the dismissal is set aside. See Pioneer, 507 U.S. at 395 . 14 Here, Defendant offers no argument for how she would be prejudiced other than her 15 claim that there would be further delay in resolving this case and further resources 16 expended with continuing litigation. ECF No. 39 at 3. However, “[p]rejudice requires 17 greater harm than simply that relief would delay resolution of the case.” Lemoge, 587 F.3d 18 at 1196 ; see also Bateman v. U.S. Postal Service, 231 F.3d 1220, 1225 (9th Cir. 2000) 19 (finding prejudice to the opposing party from the loss of a “quick victory” was minimal). 20 Accordingly, the Court finds the danger of prejudice to Defendant is minimal if the 21 dismissal is set aside and Plaintiff is allowed to file an opposition to the motion to dismiss. 22 Accordingly, this first Pioneer factor weighs in favor of Plaintiff. 23 2. Length of the Delay 24 The second Pioneer factor examines whether the length of the delay was minimal. 25 See Pioneer, 507 U.S. at 395 . 26 Here, Plaintiff filed a Notice of Change of Address and the instant Motion on June 27 2, 2023, only one day after the Court adopted the R&R and dismissed the case, and only [28] 1 eight days after the missed objections deadline of May 25, 2023. ECF Nos. 33, 36, 37; see 2 Bateman, 231 F.3d at 1225 (filing a Rule 60(b) motion a little more than one month after 3 the court’s order dismissing the case was “not long enough to justify denying relief”). 4 Accordingly, this second Pioneer factor weighs in favor of Plaintiff. 5 3. Reason for the Delay 6 The third Pioneer factor examines the movant’s reason for the delay, including 7 whether it was within the reasonable control of the movant. See Pioneer, 507 U.S. at 395 . 8 Here, Plaintiff states that the causes of his delay were that he became homeless, 9 “broke his right hand,” had his phone and car stolen, and lost access to his email accounts 10 and “files containing all case documents, information, dates.” Mot. at 2. Further, Plaintiff 11 states he, “was never properly served, notified, and or had any idea as to what was taking 12 place in the case or had an opportunity to respond to [D]efendant’s motion to dismiss.” Id. 13 In response, Defendant argues that Plaintiff’s own filing “demonstrates that he had the 14 ability to conduct online research and to access e-mail as early as March 23, 2023, and had 15 a working phone prior to that date.” ECF No. 39 at 2. Defendant states that Plaintiff should 16 have “called the clerk’s office” during that time to update his address and inquired about 17 the status of his case. Id. Although Plaintiff does not explain why he was unable to send 18 physical mail to the Clerk of Court with an updated address until June 2, 2023, such a delay 19 is not significant in the context of the facts of this case. Accordingly, this third Pioneer 20 factor weighs in favor of Plaintiff. 21 4. Good Faith 22 The last Pioneer factor examines whether Plaintiff acted in bad faith. See Pioneer, 23 507 U.S. at 395. [25] 1 Defendant disagrees that Plaintiff’s Motion should be construed as a Rule 60(b) motion [26] to set aside judgment because Plaintiff’s motion was dated May 26, 2023, prior to the entry 27 of the Court’s June 1, 2023 order dismissing the case. See ECF No. 39 at 4. However, given that Plaintiff’s Motion was filed on the docket on June 2, 2023, the Court will construe the [28] 1 Here, there is no indication that Plaintiff acted in bad faith by not timely opposing 2 Defendant’s motion to dismiss. See Bateman, 231 F.3d at 1225 (“[T]here is no evidence 3 that [Plaintiffs' counsel] acted with anything less than good faith. His errors resulted from 4 negligence and carelessness, not from deviousness or willfulness”). Accordingly, this 5 fourth Pioneer factor weighs in favor of Plaintiff. 6 In sum, all four Pioneer factors weigh in Plaintiff’s favor, and thus, the Court finds 7 that the delays that led to the dismissal of Plaintiff’s case were the result of excusable 8 neglect pursuant to Rule 60(b)(1). 9 B. Likelihood of Success on Underlying Motion 10 Although it is not a Pioneer factor, some courts consider the movant's likelihood of 11 success on the underlying motion. See United States v. Aguilar, 782 F.3d 1101, 1107 (9th 12 Cir. 2015) (“A district court may deny relief under Rule 60(b)(1) when the moving party 13 has failed to show that she has a ‘meritorious defense.’”); Manzano v. Cal. Dep’t of Motor 14 Vehicles, 467 F. App’x 683, 685 (9th Cir. 2012) (affirming the district court’s denial of the 15 plaintiff’s 60(b)(1) motion because “the neglect that [the plaintiff] sought to have the court 16 excuse—his failure to file a timely second amended complaint—was not the basis for the 17 district court's dismissal of the action. The action was dismissed because [the plaintiff] 18 failed to file a response to the state's motion to dismiss. The district court was therefore 19 correct to deny [the plaintiff’s] application, which did not address the actual basis of the 20 judgment.”); Toyrrific, LLC v. Karapetian, 2016 WL 5419397 , at *3 (C.D. Cal. Sept. 26, 21 2016) (denying the plaintiff’s 60(b)(1) motion because the plaintiff’s “underdeveloped 22 arguments and continued inability to produce relevant documents” led to the court’s 23 dismissal of the case in the first place, and plaintiff had “little likelihood of success on the 24 merits if its case were reopened.”). 25 In the Court’s previous R&R, the Court granted Defendant’s motion to dismiss on 26 the merits and recommended dismissal of the action because Plaintiff stated no cognizable 27 claims in his FAC. See ECF No. 33 at 15. As such, the Court’s prior dismissal was not 28 based on Plaintiff’s procedural default in failing to respond to Defendant’s motion to 1 || dismiss. Here, Plaintiff's Motion again fails to address the merits of Defendant's motion to 2 ||dismiss or the findings of the Court’s prior R&R. See generally Mot. Additionally, 3 || although Plaintiff's Motion argues that it will present “a Meritorious Defense to All Causes 4 || of Action in the Response to Motion to Dismiss,” Plaintiff fails to articulate any substantive 5 arguments to the Court. /d. at 5. Accordingly, Plaintiff has little likelihood of success on 6 || the merits if the case were reopened. 7 However, the Ninth Circuit has held that the determination of whether a party’s 8 ||neglect is excusable “is at bottom an equitable one, taking account of all relevant 9 circumstances surrounding the party's omission.” Lemoge, 587 F.3d at 1192 (quoting 10 || Pioneer, 507 U.S. at 395) (emphasis added) (internal citations omitted). In considering all 11 relevant circumstances and all four of the Pioneer factors, the circumstances ultimately 12 || weigh in favor of granting Plaintiff's Motion although Plaintiff's likelihood of success on 13 || the merits and on Defendant’s motion to dismiss may be low. As such, the Court finds there 14 ||is excusable neglect to set aside the judgment in this case to permit Plaintiff another 15 opportunity to oppose the motion to dismiss on the merits. 16 CONCLUSION 17 For the reasons stated above, the Court hereby: 18 1. ADOPTS the Report & Recommendation in its entirety [ECF No. 38]; 19 2. GRANTS Plaintiff’s Motion to Set Aside Judgment [ECF No. 37]; 20 3. OVERRULES Defendant Wren’s objections [ECF No. 39]; and 21 4. RESETS the deadline for Plaintiff to file an opposition to Defendant’s motion 22 || to dismiss [ECF No. 26]. Plaintiff shall file an opposition to Defendant’s motion to dismiss 23 ||no later than December 19, 2023. If Plaintiff files and serves an amended opposition, 24 || Defendant must file and serve a reply no later than January 2, 2024. 25 IT IS SO ORDERED. 26 || Dated: December 5, 2023 NO 27 NF) 28 Honorable Linda Lopez United States District Judge