McCarthy et al v. County of Sacramento et al
Filing
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ORDER signed by Judge Garland E. Burrell, Jr on 11/1/2011 ORDERING that Plaintiffs' 11 motion to set aside the September 13, 2011 order dismissing Plaintiffs' complaint is GRANTED. Further, Plaintiff Desiree McCarthy's amended "Application to Proceed Without Prepayment Of Fees and Affidavit," in which she seeks approval from the Court to proceed in this case in forma pauperis, is approved. CASE REOPENED.(Duong, D)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DESIREE MCCARTHY, Individually
and As Guardian Ad Litem for
minors T.G., D.G., and T.H.,
Plaintiffs,
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v.
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COUNTY OF SACRAMENTO, Faye
Rutherford, Jana Thoftne, Brandy
Lomack, Christy Bomback, Marlene
Albright, George Moschske, CITY
OF RANCHO CORDOVA, DOE Officers,
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Defendants.
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2:11-cv-01273-GEB-CKD
ORDER*
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Plaintiffs
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move
for
relief
under
Federal
Rule
of
Civil
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Procedure (“Rule”) 60(b) from judgment of dismissal entered on September
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13,
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applicable pay filing fee. (ECF No. 9.)
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electronically file a new IFP application on [behalf] of [McCarthy] was
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due to an oversight from [McCarthy’s counsel’s] office.” (Pl.’s Mot. 2:
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22-23.) Alan Hassan, Plaintiff’s Counsel, avers in his declaration:
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“[t]he delay in uploading the amended IFP application was strictly the
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fault of Plaintiff’s Counsel in that Plaintiff’s Counsel had had back
2011;
the
dismissal
entered
because
Plaintiffs
failed
to
Plaintiffs argue “the failure to
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argument.
This matter is deemed suitable for decision without oral
E.D. Cal. R. 230(g).
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the
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surgery . . . in May of 2011[, and that] . . . [i]t was because of
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Plaintiff’s Counsel[‘s] complications from his surgery that the amended
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IFP application was not uploaded in a timely fashion.” (Hassan Decl. ¶¶
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7-12.) Defendants do not oppose the motion.
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Under Rule 60(b)(1), “[o]n motion and just terms, the court
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may relieve a party or its legal representative from a final judgment,
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order, or proceeding for . . . mistake, inadvertence, surprise, or
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excusable neglect[.]” Fed. R. Civ. P. 60(b)(1). “To determine whether a
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party’s failure to meet a deadline constitutes ‘excusable neglect,’
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courts must apply a four-factor equitable test, examining: (1) the
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danger of prejudice to the opposing party; (2) the length of the delay
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and its potential impact on the proceedings; (3) the reason for the
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delay; and (4) whether the movant acted in good faith.” Ahanchian v.
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Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010).
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The first and second factors weigh in favor of Plaintiffs,
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since “[t]he prejudice to the [Defendants and its potential impact on
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the judicial proceedings is] minimal.” Bateman v. U.S. Postal Serv., 231
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F.3d 1220, 1224 (9th Cir. 2000). The third factor, “[t]he reason for the
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delay is, admittedly, weak. [Hassan] should have arranged for someone to
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handle his cases while he was away, and once he returned he should have
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responded more quickly . . . . He showed a lack of regard for his
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client’s interests and the court’s dockets.” Id. However, “there is no
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evidence that he acted with anything less than good faith. His errors
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resulted from negligence and carelessness, not from deviousness or
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willfulness.” Id. at 1225. Therefore, Plaintiffs’ motion to set aside
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the
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GRANTED.
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September
13,
2011
order
dismissing
Plaintiffs’
complaint
is
Further, Plaintiff Desiree McCarthy’s amended “Application to
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Proceed Without Prepayment Of Fees and Affidavit,” in which she seeks
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approval from the Court to proceed in this case in forma pauperis, is
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approved.
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Dated:
November 1, 2011
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GARLAND E. BURRELL, JR.
United States District Judge
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