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Graham v. U.S. Bank, Nat'l Ass'n

United States District Court, Ninth Circuit

January 9, 2014

BRICEN B. GRAHAM, Plaintiff,
U.S. BANK, NAT'L ASS'N, and others, Defendants.


NATHANAEL M. COUSINS, Magistrate Judge.

Plaintiff Graham moves the Court to grant him relief under Federal Rule of Civil Procedure 60(b)(1) and set aside the judgment that the Court previously entered against him. Dkt. No. 23. Because Graham has failed to show that his failure to file a timely amended complaint was due to excusable neglect, the motion is denied.


Plaintiff filed this action in Alameda County Superior Court on March 7, 2013, alleging that defendants misrepresented to plaintiff his ability to modify his home loan, breached the implied covenant of good faith and fair dealing in the mortgage agreement, were negligent in their assessment of his application for a loan modification, and failed to follow the procedures in California Civil Code § 2923.5 in instituting foreclosure proceedings. Dkt. No. 1.

Defendants removed the suit to this Court alleging diversity jurisdiction, and subsequently moved to dismiss Graham's claims. Dkt. Nos. 1, 6. Graham moved to remand the case to state court. Dkt. No. 9. When Graham did not oppose the motion to dismiss, this Court ordered Graham to show cause why he had failed to file an opposition or statement of nonopposition. Dkt. No. 15. The Court discharged the show cause order when Graham's counsel filed a declaration, with his opposition attached, explaining that the opposition was not filed due to an administrative error. Dkt. Nos. 16, 17.

The Court held a hearing on the motion to dismiss and the motion to remand on May 22, 2013. Dkt. No. 19. Counsel for Graham failed to appear and did not explain his failure prior to the Court ruling on the motions. Id. The Court granted the motion to dismiss and denied the motion to remand on May 23, 2013. Dkt. No. 20. In the order, the Court granted plaintiff until June 13, 2013, to file an amended complaint. Id. After plaintiff failed to file an amended complaint, defendants filed a notice of lodgment of a proposed judgment of dismissal with prejudice on June 17, 2013. Dkt. No. 21. The Court entered the judgment of dismissal with prejudice on June 19, 2013. Dkt. No. 22.

On September 25, 2013, plaintiff Graham moved to set aside the judgment. Defendants opposed the motion to set aside, and the Court found the motion suitable for disposition without oral argument. Dkt. Nos. 25, 26. According to plaintiff's counsel Mr. Feinstein, he did not attend the motion to dismiss hearing due to "a clerical error (Plaintiff's Counsel's Calendaring Legal Assistant unexpectantly [sic] left her position) and unknown failure to calendar the hearing." Dkt. No. 23 at 3. Feinstein also states that the Court's deadline to file an amended complaint "was also inadvertently not calendared." Id.

Plaintiff's attorneys, Joel Mark Feinstein and Chris T. Nguyen, are counsel of record on the Court's Electronic Court Filing system. Notices of Electronic Filing generated by the Court's ECF system indicate that Mr. Feinstein and Mr. Nguyen were emailed notice of the filing of plaintiff's motion to dismiss, the Court's order granting the motion to dismiss, the lodgment of a proposed judgment and dismissal, and the Court's entering of the judgment and dismissal. Chambers Decl., Exs. A, E, F, G.

Both parties consented to the jurisdiction of a United States magistrate judge under 28 U.S.C. § 636(c). Dkt. Nos. 5, 14.


Rule 60(b)(1) allows a district court to provide relief from a final judgment on the grounds of "mistake, inadvertence, surprise, or excusable neglect." Fed.R.Civ.P. 60(b)(1). Whether to grant or to deny a motion under Rule 60(b) is within "the sound discretion of the district court." Barber v. State of Hawai'i, 42 F.3d 1185, 1198 (9th Cir. 1994).

The Court's inquiry as to whether neglect is excusable "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." S.E.C. v. Platforms Wireless Int'l Corp., 617 F.3d 1072, 1100 (9th Cir. 2010) (quoting Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009)). Therefore, the Court considers four factors in determining whether neglect is excusable and thus merits relief from a judgment: "(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." Id.

"Because the client is presumed to have voluntarily chosen the lawyer as his representative and agent, he ordinarily cannot later avoid accountability for negligent acts or omissions of his counsel." Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002). In other words, "a ...

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