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Delman v. Barclay Hotel

February 18, 2009

DELMAN
v.
THE BARCLAY HOTEL, LLC, ET AL.



The opinion of the court was delivered by: The Honorable Audrey B. Collins, Chief Judge

CIVIL MINUTES - GENERAL

Daphne Alex

Proceedings: ORDER Denying Plaintiff's Motion for Relief From Judgment (In Chambers)

Pending before the Court is a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b) and 60(a) filed by Plaintiff David Delman on January 7, 2009. (Docket # 27). Defendant opposed the motion and Plaintiff filed a reply. (Docket ## 29, 30). The Court finds the motion appropriate for resolution without oral argument and VACATES the hearing set for February 23, 2009. See Fed. R. Civ. P. 78(b); Local Rule 7-15. Upon consideration of the materials submitted by the parties and the case file, the Court hereby DENIES the motion.

BACKGROUND

This case arises out of a dispute between a landlord and tenant. Plaintiff appears in this matter . On September 4, 2007, Defendants filed a motion to dismiss Plaintiff's complaint. Plaintiff failed to timely oppose the motion and was given a new deadline to oppose pursuant to a stipulation between the parties. Plaintiff then failed to timely oppose the motion by the stipulated deadline. Accordingly, on October 22, 2007, the Court dismissed Plaintiff's complaint with leave to amend within 20 days. (See Docket # 12).*fn1

Rather than file an amended complaint, Plaintiff instead filed an ex parte application to dismiss the complaint without prejudice on November 6, 2007. (Docket # 15). On November 8, 2007, the Court denied the application as moot because Plaintiff's complaint had been dismissed without prejudice and no amended complaint had been filed. (Docket # 16). Two months went by with no action in the matter. On January 25, 2008, the Court then dismissed the action with prejudice for Plaintiff's failure to file an amended complaint. (Docket # 17).

Plaintiff filed a notice of appeal on February 13, 2008. Plaintiff filed a motion and affidavit with this Court seeking to prosecute his appeal in forma pauperis. (See Docket # 24). That motion indicated that the grounds for appeal were the following:

The Order of 11/07/07 (Dismissed Without Prejudice) contradicts the Order of 1/25/08 (Dismissed With Prejudice). The Court does not have jurisdiction to dismiss a complaint, with prejudice, when no complaint exist [sic] pursuant to the Order of 11/07/07. This Court deprived a disabled individual of due process rights by the unlawful dismissal with prejudice.

The Court granted that motion, finding that the appeal was not frivolous. (Id.)

On appeal Plaintiff sought and received an extension to file his opening brief, making it due on April 21, 2008. Plaintiff asserts that he sought this extension because he had a trip planned to Europe from mid-March to mid-April. See Rule 60 Motion at 2. Plaintiff did not file his opening appellate brief by the extended deadline, however. Plaintiff asserts that he missed that deadline because, upon returning from Europe, he had realized that one of his citations was incorrect and he did not feel he could correct the error in time to meet the deadline. Id. Eight months later, the Ninth Circuit dismissed the appeal for failure to prosecute pursuant to Ninth Circuit Rule 42-1. This Court's receipt of that order on December 17, 2008, constituted a mandate. (See Docket #26). Plaintiff did not seek reinstatement of his appeal pursuant to Ninth Circuit General Order 2.4.

DISCUSSION

Plaintiff now brings the current motion pursuant to Fed. R. Civ. P. 60(b) and 60(a) asserting that this Court improperly dismissed his claims with prejudice in the January 25, 2008 Order. Plaintiff argues that his application for dismissal without prejudice was controlling and that the Court erred in later dismissing his claims with prejudice for failing to file an amended complaint. Although Plaintiff seeks relief pursuant to Rule 60(b)(1), (4) and (6), as well as Rule 60(a), his motion focuses primarily on the ...


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