The opinion of the court was delivered by: John A. Mendez United States District Court Judge
On July 27, 2012, the court dismissed this case for failure to prosecute. Dckt. No. 14.
On the same date judgment was entered and the case was closed. Dckt. No. 15. Petitioner now requests the court reopen the case pursuant to Federal Rule of Civil Procedure 60(b). Dckt. No. 16
Federal Rule of Civil Procedure 60(b)(1) provides that "[o]n 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 . . . ." Petitioner contends that he failed to file an opposition to respondent's motion to dismiss because he did not receive notice of the motion until after the judgment was entered. Petitioner explains that he was moved to the department of mental health due to a mental disorder and was unable to work on his case. Petitioner further contends that there was a delay in receiving his legal mail. He claims that he is no longer housed at the department of mental health and is now able to respond to the motion to dismiss.
The undersigned finds that petitioner's failure to file an opposition to respondent's motion to dismiss due to a mental disorder constitutes excusable neglect. Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's January 4, 2012 motion is granted and the order and judgment are set aside;
2. Petitioner's March 7, 2013 motion for relief from judgment is denied as duplicative;
3. The Clerk of the Court is directed to reopen the case;
4. The Clerk of the Court is directed to send petitioner a copy of respondent's January 24, 2012 motion to dismiss;
5. Within 30 days of the date of this order, petitioner shall file an opposition or statement of non-opposition to respondent's motion to dismiss; and
6. Petitioner is admonished that failure to comply with this order will result in dismissal of this case.
© 1992-2013 VersusLaw ...