Free Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

David H. Busch, Jr., Plaintiff, vs. Seahawk Software Development L.L.C., et al., Defendants.

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No. CV-04-0425-PCT-PGR ORDER and OPINION

The Court entered an order (doc. #23) and judgment (doc. #24) on January 6, 2006 dismissing this action without prejudice pursuant to Fed.R.Civ.P. 41(b) as a result of the plaintiff's unexplained failure to comply with the Court's orders of November 3, 2005 (doc. #20) and December 1, 2005 (doc. #22) requiring the plaintiff to file a memorandum of points and authorities in support of his request for default judgment. Pending before the Court is the plaintiff's Motion to Set Aside Judgment1 (doc. #25), filed January 6, 2006 pursuant to Fed.R.Civ.P. 60(b)(1), wherein the plaintiff states that his counsel's failure to timely file the required memorandum constitutes excusable neglect "in that counsel prepared the draft memorandum by the required date and while completing it, unfortunately, on December 22, suffered a massive heart attack causing a three night hospital stay and recovery."
The Court notes that the plaintiff's capitalization of the parties' names in the caption of his motion violates LRCiv 7.1(a)(3).
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The plaintiff states that his counsel will file the required memorandum by January 16, 2006 if the Court permits him to do so. Although neither noted nor discussed by the plaintiff, a district court must consider several equitable factors when considering a Rule 60(b) motion based on a claim of excusable neglect: (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. Bateman v. United States Postal Service, 231 F.3d 1220, 1223-24 (9th Cir. 2000) (citing to Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 (1993)). While the first two factors militate in favor of granting the plaintiff's motion because the defendants, having been defaulted, will not suffer any legal prejudice if the judgment is vacated, and because the plaintiff filed his Rule 60(b) motion immediately upon receipt of the Court's order and judgment of dismissal, the Court cannot resolve the issue of whether the last two factors militate in favor of granting the plaintiff's motion due to the incompleteness of the plaintiff's motion. While the Court has no problem concluding that a heart attack suffered by counsel can excuse a missed deadline, assuming that the heart attack was the reason why the deadline was missed, conspicuously absent from the plaintiff's motion is any explanation of why the Motion for Default Judgment filed on November 17, 2005 did not include the required memorandum, why the required memorandum was not filed by the initial deadline of November 30, 2005, or why the plaintiff's counsel's heart attack on December 22, 2005 should excuse his failure to timely file the memorandum when the extended filing deadline was December 19, 2005.2 Because the Court needs the answers to these questions

Also absent from the plaintiff's motion is any explanation of why, in light of the Court's order of December 1st, no one at the plaintiff's counsel's law firm, be it one of the other (continued...)

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before it can resolve the plaintiff's motion, the Court will require the plaintiff to file an addendum to his motion addressing these matters. Therefore, IT IS ORDERED that the plaintiff shall file an addendum to his Motion to Set Aside Judgment in compliance with this Order no later than January 13, 2006. DATED this 9th day of January, 2006.

(...continued) attorneys or one of the support staff, did not simply telephone Chambers after counsel's heart attack on December 22nd in order to explain what was going on; such a simple act of communication could have allowed the Court to consider granting at least an informal extension of time to file the memorandum, thus eliminating the need for the Court to expend scarce resources in dealing with the plaintiff's unexplained failures to comply with its orders.

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