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Anthony Julian Barraza v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 5, 2011

ANTHONY JULIAN BARRAZA,
PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pending before the court is plaintiff's motion to set aside the court's order of dismissal (Doc.26).

The court issued an order of dismissal for plaintiff's failure to prosecute (Doc. 24). Plaintiff had been provided several opportunities to file a dispositive motion, which was not filed within the time provided, nor was there any response to the order to show cause the court issued prior to the dismissal order. Counsel asks the court to excuse her neglect in not timely filing the summary judgment motion.

Under Rule 60(b), the court may grant reconsideration of a final judgment and any order based on, among other things: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which, with reasonable diligence, could not have been discovered within ten days of entry of judgment; and (3) fraud, misrepresentation, or misconduct of an opposing party. A motion for reconsideration on any of these grounds must be brought within a reasonable time and no later than one year of entry of judgment or the order being challenged. See Fed. R. Civ. P. 60(c)(1).

Counsel indicates that her neglect in not filing a timely motion was due to her overwhelming case load. Counsel has since filed the necessary motion for summary judgment, and indicates opposing counsel has no objection to reinstating this case or the late filed brief.

The undersigned is not convinced counsel has shown good cause, especially given the numerous opportunities she had to file her motion or seek additional time in which to do so, and her failure to respond to the court's order to show cause. However, the undersigned finds the fault lies with counsel not plaintiff, and it would be an injustice to plaintiff not to grant the request to reinstate this case.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to set aside the order of dismissal (Doc. 26) is granted;

2. The Clerk of the Court is directed to reopen this case;

3. Plaintiff's motion for summary judgment (Doc. 27) is accepted as filed;

4. Defendant shall file it's cross-motion for summary judgment within 45 days of the date of this order; and

5. Plaintiff's reply brief, if any, shall be filed within 20 days of defendant's motion.

20110405

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