The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER: DENYING PLAINTIFF'S EX PARTE MOTION FOR RELIEF FROM DISMISSAL
Presently before the Court is Plaintiff Nicena Molina's ex parte motion for relief from dismissal. (Doc. No. 15 (Mot.).) Also before the Court are Defendant John E. Potter's opposition and Plaintiff's Reply. (Doc. Nos. 17 (Opp'n), 18 (Reply).) Having considered the parties' arguments and the law, the Court DENIES Plaintiff's motion.
Plaintiff filed her complaint on March 1, 2010. (Doc. No. 1.) On July 20, 2010, Defendant moved to dismiss for failure to serve process. (Doc. No. 7.) Plaintiff responded to the motion, explained why she had not served Defendant, and requested additional time to serve under Rule 4(m). (Doc. No. 10, at 4--6.) On August 10, 2010, the Court granted Plaintiff additional time to serve and stated: "service shall be effectuated and proof of service reflected on the docket by August 17, 2010. Failure to do so will result in the Court granting Defendant's motion to dismiss." (Doc. No. 12 (emphasis in original).)
Plaintiff failed to meet the Court's deadline, and the Court dismissed the action without prejudice. (Doc. No. 13.) Plaintiff now moves the Court to set aside the dismissal, allow her to file proof of service, and deem service timely. (Doc. No. 15-1 (Mem.), at 4.)
Under Federal Rule of Civil Procedure 60(b), a court may relieve a party from a "final judgment, order, or proceeding." Plaintiff brings her Rule 60(b) motion under subsection (1), which provides relief from judgment from mistake, surprise, or inexcusable neglect. (Mem. at 6.) "Excusable neglect 'encompass[es] situations in which the failure to comply with a filing deadline is attributable to negligence,' and includes 'omissions caused by carelessness.'" Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 388, 394 (1993)). "The determination of whether neglect is excusable 'is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.'" Id. (quoting Pioneer, 507 U.S. at 395). To determine whether neglect is excusable, a court must consider at least four factors: "(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. U.S. Postal Serv., 231 F.3d 1220, 1223--24 (9th Cir. 2000); accord Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 (9th Cir. 1997). Failure to consider all four factors constitutes an abuse of discretion. Ahancian v. Xenon Pictures, Inc., 624 F.3d 1253, 1262 (9th Cir. 2010); Lemoge, 587 F.3d at 1192; Bateman, 231 F.2d at 1224.
Further, when an act must be done within a specified time, a court may extend the time for the party to act "on motion made after the time has expired if the party failed to act because of excusable neglect." Fed. R. Civ. P. 6(b)(1)(B). The test for whether neglect is excusable under Rule 6(b)(1)(B) is the same as under Rule 60(b)(1). See Pioneer, 507 U.S. at 392--93; Comm. for Idaho's High Desert, Inc. v. Yost, 92 F.3d 814, 825 n.4 (9th Cir. 1996).
A. Danger of Prejudice to Defendant
To determine whether neglect is excusable, the Court first considers the danger of prejudice to Defendant. See Bateman, 231 F.3d at 1223. In this case, Defendant has already been prejudiced by the undue delay caused by Plaintiff's counsel's consistent inattention to the case. Prosecution of the matter has been delayed several times on Plaintiff's account.*fn1 And the Court granted Plaintiff additional time to effectuate service and explicitly stated that failure to comply with the Order would result in dismissal, yet Plaintiff failed to serve. (See Doc. Nos. 12, 13.)
Defendant would suffer further prejudice if the Court were to grant Plaintiff relief from judgment. Even now, Defendant is likely to confront the loss of witnesses, lapses of memories, and difficulties locating evidence. Cf. Lal v. Cal., 610 F.3d 518, 527 (9th Cir. 2010) (finding insufficient prejudice to warrant denying relief from judgment where there was a wealth of evidence including numerous witness statement, tape recorded statements, and written transcripts of ...