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In Re Hydroxycut Marketing v. Iovate Health Sciences

July 23, 2012

IN RE HYDROXYCUT MARKETING AND SALES PRACTICES LITIGATION
ERIN L. STAMMER, PLAINTIFS,
v.
IOVATE HEALTH SCIENCES, U.S.A., INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER DENYING MOTION TO SET ASIDE DISMISSAL

Plaintiff Erin L. Stammer has filed a motion under Fed. R. Civ. P. 60 to set aside the judgment of dismissal. For the reasons discussed below, Plaintiff's motion is DENIED WITHOUT PREJUDICE.

I. FACTS

On April 4, 2012, Defendant Iovate Health Sciences U.S.A., Inc. ("Defendant") filed a request for dismissal of Plaintiff's claims for failure to provide a timely Plaintiff Fact Sheet ("PFS") in accordance with the Court's May 17, 2010 order and Case Management Order ("CMO") dated September 10, 2010.

The CMO outlines the procedure in the event of any deficiencies relating to a PFS. According to the CMO, certain deficiencies, including failure to serve a PFS, shall be deemed "Threshold Deficiencies." After receipt of a Deficiency Notice that identifies a Threshold Deficiency, a Plaintiff shall have 25 days to cure the deficiencies. If the Plaintiff fails to cure any Threshold Deficiency identified in the Deficiency notice, Defendant may file the Deficiency Notice and Request for Dismissal with the Court.

After the filing of a Request for Dismissal, the CMO provides that the Plaintiff has an additional fifteen (15) days to serve a certification that Plaintiff has served a PFS curing the Threshold Deficiency (and all the required authorizations identified in its instructions), and must attach appropriate documentation demonstrating such service. Absent such certification, Defendant's Request for Dismissal shall be granted and the case dismissed without prejudice.

On August 22, 2011, October 6, 2011, and October 12, 2011, Defendant's counsel corresponded with Plaintiff's counsel, informing Plaintiff's counsel that Plaintiff had not completed a Claimant Information Sheet ("CIS"), which was required to participate in mediation, or a PFS. (Exs. A, B, and C to Herman Decl. in support of Request for Dismissal). On December 12, 2011, Plaintiff provided a CIS but did not provide a PFS. (Herman Decl. ¶ 5.)

On March 1, 2012, Defendant mailed a Deficiency Notice to Plaintiff's counsel identifying

Plaintiff's failure to timely provide a PFS.

On April 9, 2012, the Court ordered Plaintiff to show cause why her claims against Defendant should not be dismissed. The Court informed Plaintiff that if she did not, by April 19, 2012, file and serve a certification that she had completed and provided Defendant with a PFS and all required authorizations, her claims were subject to dismissal without prejudice. The Court also directed Plaintiff to respond to the OSC on or before April 25, 2012. Plaintiff did not file a certification or a response to the OSC.

Accordingly, on April 27, 2012, the Court dismissed Plaintiff's claims without prejudice. That same day, the Clerk entered judgment dismissing Plaintiff's claims without prejudice.

II. DISCUSSION

Plaintiff moves to set aside the judgment of dismissal on the ground of mistake or excusable neglect. Fed. R. Civ. P. 60(b)(1). As discussed below, the Court finds that such relief is not warranted.

The term "excusable neglect" extends to cases of negligence, carelessness, and inadvertent mistake. Bateman v. United States Postal Service, 231 F.3d 1220 (9th Cir. 2000). In determining whether negligence on the part of counsel constitutes "excusable neglect," courts consider the following four factors set forth in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 (1993): (1) the ...


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