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In re Nemee

United States District Court, Ninth Circuit

May 20, 2013

IN RE MICHAEL NEMEE, et al. Debtors
v.
BRENT HARRINGTON, et al., Defendants. MICHAEL NEMEE, et al., Plaintiffs,

ORDER ON MOTION FOR RELIEF FROM JUDGMENT (Doc. 10)

LAWRENCE J. O'NEILL, District Judge.

PRELIMINARY STATEMENT TO PARTIES AND COUNSEL

Judges in the Eastern District of California carry the heaviest caseloads in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters. Given the shortage of district judges and staff, this Court addresses only the arguments, evidence, and matters necessary to reach the decision in this order. The parties and counsel are encouraged to contact the offices of United States Senators Diane Feinstein and Barbara Boxer to address this Court's inability to accommodate the parties and this action. The parties are required to reconsider consent to conduct all further proceedings before a Magistrate Judge, whose schedules are far more realistic and accommodating to parties than that of U.S. District Judge Lawrence J. O'Neill, who must prioritize criminal and older civil cases.

Civil trials set before Judge O'Neill trail until he becomes available and are subject to suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later date if Judge O'Neill is unavailable on the original date set for trial. Moreover, this Court's Fresno Division randomly and without advance notice reassigns civil actions to U.S. District Judges throughout the nation to serve as visiting judges. In the absence of Magistrate Judge consent, this action is subject to reassignment to a U.S. District Judge from outside the Eastern District of California.

INTRODUCTION

Plaintiffs Kenneth and Michelle Nemee ("Plaintiffs") seek reconsideration to set aside dismissal of this action due to their attorney Kenneth Foley's ("Mr. Foley's") failure to comply with this Court's order for a status report to address continued stay of this action. Defendants Calaveras County and three of its employees (collectively "Defendants") oppose reconsideration on the basis of lack of evidence of excusable neglect by Plaintiffs' attorneys. For the reasons discussed below, this Court CONDITIONALLY GRANTS reconsideration and sets aside this action's dismissal.

BACKGROUND

Facts and Procedural History

Plaintiffs initiated action in this Court to withdraw the bankruptcy reference of their adversary proceeding and to transfer the adversary proceeding to this Court as a civil action separate from their completed Chapter 7 bankruptcy. This Court's January 8, 2013 order ("January 8 order") granted Plaintiffs' motion to withdraw, transferred the adversary proceeding to this Court as this action, and stayed this action pending appeal of a related action. The January 8 order further required the parties "no later than March 21, 2013 and every 60 days thereafter, to file a joint status report to address the status of the appeal" of the related matter and the need to continue stay of this action. The January 8 order was electronically mailed to Mr. Foley at two different email addresses and Plaintiff's other counsel of record Malcolm Gross ("Mr. Gross") at his email address separate from Mr. Foley's email addresses.

After the parties failed to file a timely status report, this Court's March 25, 2013 notice ("March 25 notice") advised the parties that "this Court will dismiss and close this action, unless no later than April 1, 2013, a joint status report or other papers are filed showing good cause not to dismiss and close this action." The March 25 notice as electronically mailed to Mr. Foley at his two email addresses and to Mr. Gross at his separate email address.

By his March 25, 2013 email, defense counsel forwarded the March 25 notice to Mr. Foley and requested Mr. Foley to "prepare a joint status report discussing your intent with respect to the case and forward it to me for comment." On April 1, 2013, defense counsel filed his declaration to indicate inability to contact Mr. Foley to prepare a joint status report. Defense counsel's email was electronically mailed to Mr. Foley at his two email addresses and to Mr. Gross at his separate email address.

This Court's April 2, 2013 order ("April 2 order") dismissed this action based on Plaintiffs' failure to comply with both the January 8 order to file a status report and the March 25 notice that provided another opportunity to file a status report. An April 2, 2013 judgment was entered. On April 16, 2013, Plaintiffs filed the instant motion for reconsideration of the dismissal on the basis of excusable neglect pursuant to Fed.R.Civ.P. 60(b). Defendants filed an opposition on May 6, 2013, and Plaintiffs filed a reply on May 13, 2013.

Noncompliance with this Court's March 25 Notice

The declarations of Mr. Foley and his secretary Melissa Gibson ("Ms. Gibson") in support of Plaintiffs' motion for reconsideration address Mr. Foley's failure to file a status report in that:

1. Mr. Foley had a hip replacement on January 28, 2013 and did not return to work full time until early March 2013;
2. Mr. Foley's 99-year-old father was hospitalized after a fall and suffered pneumonia;
3. To care for his father, Mr. Foley traveled to New Jersey during March 25, ...

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