IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
December 16, 2011
LARRY TYRONE BRANTLEY, SR.; AND
ELLEN BRANTLEY, PLAINTIFFS,
GARRETT BOYD; MODO REALTY, INC.;
ROYAL CROWN MORTGAGE, INC.;
SERGEI KLYAZMIN; AND ACADEMY ESCROW, DEFENDANTS.
ORDER GRANTING PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL
Before the Court is a Motion for Relief from Dismissal under Federal Rule of Civil Procedure 60 filed by Plaintiffs Larry 15 No. 262 ("Mot."). For the following reasons, the Court GRANTS 17 On August 2, 2011, Plaintiffs' former counsel Dorothy Guillory ("Guillory") filed a motion to withdraw as counsel. ECF No. 234. 20 In support of her motion, Guillory submitted a brief and an 21 affidavit explaining that a conflict of interest and irreconcilable 22 differences had arisen that precluded her from continuing to 23 represent Plaintiffs. ECF Nos. 235 ("M. of P. & A."), 236 24 ("Guillory Decl."). Guillory also sent Plaintiffs a letter via 25 certified mail informing them in bold type that the Court would 26 hold a hearing on the motion to withdraw on September 9, 2011, and 27 that "[t]he Court requires your presence at this hearing." ECF No. 28 237.
Brantley and Ellen Brantley ("Plaintiffs" or "the Brantleys"). ECF Plaintiffs' Motion. 18
Guillory's motion. Plaintiffs failed to attend. Guillory 3 presented the Court with a certified mail receipt signed by 4
On September 9, 2011, the Court held a hearing on the Plaintiffs demonstrating that they received her letter. Guillory 5 stated that she had spoken with Plaintiffs by telephone the morning 6 of the hearing to remind them to appear, but that Plaintiffs denied 7 any knowledge of the hearing and declared that they would not 8 attend. Due to Plaintiffs' absence, the Court continued the 9 hearing on the Motion until November 18, 2011. The Court issued, 10 and served upon the Brantleys, an order to show cause instructing them that if they did not appear at the November 18 hearing their 12 case would be dismissed. ECF No. 252. Plaintiffs failed to appear 13 at the hearing on November 18, 2011. The Court granted Guillory's 14 motion to withdraw as Plaintiff's lawyer, and the Court dismissed 15 the case. ECF No. 259. 16
Plaintiffs now ask the Court to set aside the order of 17 dismissal. Mot. at 2. They have submitted declarations stating 18 that they arrived at the November 18 hearing fifteen minutes late 19 because of a ticketing malfunction at the subway station and 20 because of confusion about where the proper courtroom was located 21 once they reached the courthouse. ECF Nos. 263, 264. They ask the Court to find that their failure to appear was due to excusable 23 neglect. Mot. at 3. 24
25 may relieve a party or its legal representative from a final 26 judgment, order, or proceeding [due to] mistake, inadvertence, 27 surprise, or excusable neglect." The Court finds Plaintiffs'
Under Federal Rule of Civil Procedure 60(b)(1), " the court failure to arrive at the November 18 hearing on time excusable 2 neglect and therefore VACATES its order of dismissal. 3
The Court will provide Plaintiffs one final opportunity to 4 appear personally before the Court to show cause why their case 5 should not be dismissed for failure to prosecute. Accordingly,
Plaintiffs are ORDERED to appear personally before the Court on January 27, 2012 at 10:00 a.m. in Courtroom 1, on the 17th floor, U.S. Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102.
If Plaintiffs do not appear on time as ordered, the Court will 10 dismiss their case with prejudice and will not entertain a future motion for relief. 12 13
IT IS SO ORDERED.
UNITED STATES DISTRICT JUDGE
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