The opinion of the court was delivered by: Stanley A. Boone United States Magistrate Judge
ORDER DENYING PLAINTIFFS' MOTION TO VACATE THE ORDER TO
DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT
(ECF NO. 57.)
Currently pending before the Court is Plaintiffs Jamey L. Nastrom and Kim M. HewtonNastrom's ("Plaintiffs") Motion to Vacate the Order to Dismiss Plaintiffs' First Amended Complaint, Pursuant to Federal Rule 60(b). (ECF No. 57.) Defendants filed an opposition on January 11, 2013 (ECF No. 65) and Plaintiffs filed a reply on January 18 2013 (ECF No. 69).
The Court, having reviewed the record, finds this matter suitable for decision without oral argument. See Local Rule 230(g). Accordingly, the previously scheduled hearing on January 25, 2013 will be vacated and the parties will not be required to appear at that time.
For the reasons set forth below, the Court denies the Plaintiffs' motion.
Plaintiffs' First Amended Complaint ("FAC") filed on August 6, 2012 is the operative pleading in this action. (ECF No. 43.) On August 23, 2012, Defendants Deutsche Bank National Trust Company, Federal Home Loan Mortgage Corporation, JP Morgan Chase Bank, N.A., and Mortgage Electronic Registration Systems, Inc. ("Defendants") filed their motion to dismiss the FAC. (ECF No. 44.)
The motion to dismiss was set for hearing on September 28, 2012. (ECF No. 44.) Accordingly, by operation of Local Rule 230(c), Plaintiffs' opposition was due on September 14, 2012. Plaintiffs failed to file an opposition. On September 26, 2012, the Court issued a minute order taking the motion to dismiss hearing off-calendar and taking the matter under submission. (ECF No. 50.)
On October 10, 2012, 26 days after Plaintiffs' opposition was due and 14 days after the Court took the matter off calendar, Plaintiffs filed an ex parte application seeking leave to file an untimely opposition to Defendants' motion to dismiss. (ECF No. 51.) Plaintiffs informed the Court that:
Un[ited] Law Center experienced a brief period of fragmentation with regard to how hearing dates were received. Consequently, the undersigned attorney failed to receive notice with regard to Defendants' motion to dismiss, and did not file an opposition, as is regularly done. In fact, the undersigned attorney was not aware of the hearing for the motion to dismiss until the week of the hearing.
(Mem. of P. & A. in Supp. of Pls.' Ex Parte App. for Order Allowing Filing of Pls.' Opp'n to Defs.' Mot. to Dismiss Pls.' First Am. Compl. 2:14-18.) Plaintiffs also filed a declaration from Myles Montgomery, Plaintiffs' attorney, in support of their ex parte application. (ECF No. 53.) Mr. Montgomery explained that the e-mail notice pertaining to the filing of Defendants' motion to dismiss was sent to another attorney in his office. (Decl. of Myles Montgomery in Supp. of Pls.' Ex Parte App. for Order Allowing Filing of Pls.' Opp'n to Defs.' Mot. to Dismiss Pls.' First Am. Compl. (hereinafter "Montgomery Decl.") 2:4-6.) This unidentified attorney forwarded the e-mail to Mr. Montgomery, but for unexplained reasons, "the Notice information was not visible on [Mr. Montgomery's] screen, and, therefore, [Mr. Montgomery] was unaware of the Motion." (Montgomery Decl. 2:6-8.) Moreover, Mr. Montgomery had been with United Law Center for only two months, had not been assigned a permanent paralegal and was filling in for several attorneys, including one on leave with a severe medical condition. (Montgomery Decl. 2:9-13.) Mr. Montgomery claimed he did not learn about the hearing until September 25, 2012. (Montgomery Decl. 2:16-18.)
The Court denied Plaintiffs' ex parte application on October 10, 2012. (ECF No. 54.) The Court took note that the parties filed a Joint Case Management Statement on September 14, 2012, which was signed by Mr. Montgomery and included a paragraph discussing Defendants' motion to dismiss and the motion to dismiss hearing on September 28, 2012. (Order Denying Ex Parte App. for Order Allowing Filing of Pls.' Opp'n to Defs.' Mot. to Dismiss Pls.' First Am. Compl. (hereinafter "Order Denying Ex Parte App.") 2:17-26.) The Court further noted the issuance minute order taking a September 24, 2012 scheduling conference off calendar due to the pending motion to dismiss. (Order Denying Ex Parte App. 2:27-28.) The Court also questioned why Plaintiffs waited until October 10, 2012 to request leave to file an untimely opposition when they supposedly discovered their mistake on September 26, 2012. (Order Denying Ex Parte App. 4:19-5:2.) The Court concluded that Plaintiffs failed to demonstrate excusable neglect justifying leave to file an untimely opposition. (Order Denying Ex Parte App. 4:8-10.)
The Court granted Defendants' motion to dismiss on November 14, 2012. (ECF No. 55.) Plaintiffs filed the present motion to vacate dismissal on November 26, 2012. (ECF No. 57.)
II. LEGAL STANDARDS FOR RELIEF FROM JUDGMENT UNDER F.R.C.P. 60(b)
Plaintiffs request relief from final judgment pursuant to Federal Rule of Civil Procedure 60(b). Rule 60(b) states, in relevant part:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
The only ground for relief raised in Plaintiffs' motion is excusable neglect. "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. U.S., 587 F.3d 1188, 1192 (9th Cir. 2009) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 388, 394 (1993)). The determination of whether neglect is considered "excusable" "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) (quoting Pioneer Inv. Servs. Co., 507 U.S. at 395). However, "a Rule 60(b)(1) reconsideration motion should not merely present arguments previously raised, or which could have been raised in the original briefs." San Luis & Delta-Mendota Water Authority v. U.S. Dept. of Interior, 624 F. Supp. 2d 1197, 1208 (E.D. Cal. 2009); see also Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (discussing reconsideration under Rule 59(e)); Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985) (reconsideration properly denied if "it presented no arguments that had not already been raised...").
In determining whether neglect is excusable, the Court performs the Pioneer-Briones analysis by analyzing 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. Lemoge, 587 F.3d at 1192 (quoting Bateman v. U.S. Postal Service, 231 F.3d 1220, 1223-24 (9th Cir. 2000)). Additionally, "[a]lthough prejudice to the movant is not an explicit Pioneer-Briones factor, and is not a factor that ... should be assessed in each and every case evaluating a ...