The opinion of the court was delivered by: John A. Mendez United States District Court Judge
This civil rights action was closed on October 10, 2012. On November 2, 2012, plaintiff filed a letter stating that he hoped the instant case was still open, and, if not, that the court would re-open his case. Docket # 15. The court will liberally construe the letter as a motion for relief from judgment under Fed. R. Civ. P. 60(b)(1).
Under Rule 60(b)(1), "[on] motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for ... mistake, inadvertence, surprise, or excusable neglect."
Excusable neglect "encompass[es] situations in which the failure to comply with a filing deadline is attributable to negligence," Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), and includes "omissions caused by carelessness," id. at 388, 113 S.Ct. 1489.
Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009).
To determine whether a party's failure to meet a deadline constitutes "excusable neglect," courts must apply a four-factor equitable test, examining: (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. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.1997) (adopting this test for consideration of Rule 60(b) motions). Through other decisions, including Bateman v. U.S. Postal Serv., 231 F.3d 1220 (9th Cir.2000), and Pincay v. Andrews, 389 F.3d 853 (9th Cir.2004) (en banc), we have further clarified how courts should apply this test.
Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010).
Plaintiff filed the instant civil rights complaint while he was an inmate in Sacramento County Main Jail, on April 12, 2012. Plaintiff failed to file a completed application to proceed in forma pauperis and was granted thirty days' leave to do so by order filed on April 30, 2012. Plaintiff filed a completed application on May 14, 2012. Plaintiff was granted in forma pauperis status and the complaint was dismissed with leave to amend in twenty-eight days, by an order filed on July 9, 2012, wherein the deficiencies of the complaint were set forth.
Thereafter, on July 20, 2012, the Sacramento County Sheriff's Department filed a notice, stating that plaintiff was no longer in jail custody and had been transferred on May 30, 2012. However, the docket indicates that at no time has plaintiff filed a notice of change of address. On July 24, 2012, plaintiff's mail from the court was returned as undeliverable. On August 27, 2012, the magistrate judge recommended dismissal of the action without prejudice, plaintiff having failed to file an amended complaint and the time for doing so having expired, citing Local Rule 110; Fed. R. Civ. P. 41(b). It was also stated therein:
Although it appears from the file that plaintiff's copy of the order was returned, plaintiff was properly served. It is the plaintiff's responsibility to keep the court apprised of his current address at all times. Pursuant to Local Rule 182(f), service of documents at the record address of the party is fully effective.
The findings and recommendations were returned to the court as undeliverable, once again, on September 4, 2012. On October 10, 2012, the undersigned adopted the findings and recommendations in an order observing that the findings and recommendations had been returned and again noting that, nevertheless, as set forth above, plaintiff had been properly served pursuant to L.R. 182(f). This action, therefore, was dismissed without prejudice and judgment thereon entered.
In plaintiff's motion to re-open, he offers no substantive explanation for having failed to provide the court with a notice of change of address since his transfer from county jail to state prison custody, indeed, he does not even provide such notice with his present motion. Plaintiff states that it is his hope that his case, his first lawsuit, is still open, and, if not, that it be re-opened. He makes a passing reference to having been told that because he was now in prison, he would have to wait for his mail to be forwarded, and provides as the reason for his present writing that he has not received court mail regarding this case for some five months. He does not even now appear to be aware that it is his responsibility to keep the court apprised of his current address. In other words, for the court to be make sure that he receives even this order has required court clerk staff to seek his current whereabouts by way of the California Department of Corrections and Rehabilitation (CDCR) website's inmate locator.
Given the posture of this case when it was closed, the court finds that, with regard to the question of whether or not plaintiff is entitled to have his case re-opened on the basis of excusable neglect, the first factor, danger of prejudice to the opposing party, and the second factor, the length of the delay and its potential impact on the proceedings, weighs less heavily than the third and fourth factors, the reason for the delay and whether plaintiff has acted in good faith, respectively. Plaintiff, on the basis of ill-defined advice he received from an uncertain source regarding how he would be receiving mail once transferred from jail to prison, failed, for a five-month period, to make any effort whatever to contact this court, and has still, to this point, failed to provide the court with his present mailing address. Plaintiff simply does not provide a sufficient reason to explain the length of the delay, and he does not make an adequate showing of good ...