United States District Court, E.D. California
move for reconsideration of this court's June 11, 2019
order granting in part and denying in part plaintiff's
motion for summary judgment, ECF No. 27, under Rule 60(b)(6)
of the Federal Rules of Civil Procedure. Mot., ECF No. 34.
Plaintiff opposes the motion. Opp'n, ECF No. 36. At
hearing, Bradley Smith appeared for plaintiff and Richard
Morin and Bryce Fick appeared for defendants Siu Keung Chan
and Rita Ngan Chan. For the reasons discussed below, the
motion for reconsideration is GRANTED.
an action for violations of the Americans with Disabilities
Act of 1990 (“ADA”) and California's Unruh
Civil Rights Act. The plaintiff is a C-5 quadriplegic who
uses a motorized wheelchair and has significant manual
dexterity impairments. Compl., ECF No. 1. The defendants own
or owned the physical premises of a Subway restaurant located
at 6530 Florin Road, Sacramento, California. Id.
¶¶ 2-13; Answer, ECF No. 7. Plaintiff alleges the
restaurant failed to provide ADA-mandated disability
accommodations, causing him difficulty, discomfort and
frustration. Compl. ¶¶ 21-37, 68-69.
April 20, 2018, plaintiff moved for summary judgment. Mot.
Summ. J., ECF No. 22. On June 12, 2019, after the deadline
for defendants to file an opposition to the motion passed,
the court issued an order granting the majority of
plaintiff's claim, excepting an issue relating to the
paint on the disabled parking spot at the restaurant. Order
Mot. Summ J., ECF No. 27. The order awarded both injunctive
relief, directing defendants to make the required disability
accommodations, and a civil penalty of $8, 000.00.
1, 2019, plaintiff filed an ex parte application to vacate
trial dates and order defendants to appear, contending that
they could not reach defendants through their counsel of
record, Mark T. Gallagher. Ex Parte Appl., ECF No. 29. The
application stated that Mr. Gallagher had lost his license to
practice law as of January 18, 2019 and the California State
Bar was in the process of disbarring him for several ethics
violations. Appl., Ex. 2, ECF No. 29-4. The court takes
notice of State Bar records reflecting that Mr. Gallagher
defaulted at a State Bar Court proceeding on January 15,
2019. In the Matter of Mark T. Gallagher- #180514,
18-O-13772-CV (Cal. State Bar Ct., Jan. 15, 2019). The
Supreme Court of California has since ordered Mr. Gallagher
disbarred, on October 31, 2019. In re Mark T. Gallagher
on Discipline, 18-O-13772-CV, slip op. S256339 (Cal.
S.Ct. Oct. 31, 2019). Following plaintiff's July 1
application and before Mr. Gallagher's disbarment, on
July 8, 2019, this court issued an order to show cause to Mr.
Gallagher, which was returned as undeliverable. Order to Show
Cause, ECF No. 30. On July 30, 2019, the court issued an
order notifying defendants their counsel was ineligible to
practice law and directing them to find new counsel or
proceed pro se. Order, ECF No. 31.
August 19, 2019, the court authorized new counsel Richard J.
Morin to substitute as counsel of record for defendants. ECF
No. 35. On August 29, defendants filed the instant motion for
reconsideration. Mot., ECF No. 34. Defendants aver in support
of their motion that Mr. Gallagher told them he would file a
motion to dismiss, but in fact they now know he never did.
Mot., Declaration of Rita Ngan Chan (“Chan
Decl.”), ECF No. 34-2. They also allege Mr. Gallagher
never told them the motion for summary judgment had been
filed; they now know he did not oppose the motion.
Id. ¶ 4. Particularly relevant to injunctive
relief, defendants assert the Subway restaurant at issue
ceased operations in January 2019. Mem. P. & A., ECF No.
34-1 at 2; Chan Decl. ¶ 7. Finally, defendants claim Mr.
Gallagher never informed them he was unable to practice law,
and that they only became aware of this development after
they were served with the court's order directing them to
find new counsel. Mem. P. & A. at 2; Chan Decl. ¶ 6.
pertinent here, a court may relieve a party from an order
under Rule 60 of the Federal Rules of Civil Procedure for
“mistake, inadvertence, fraud, or excusable
neglect” or for “any other reason that justifies
relief.” Fed.R.Civ.P. 60(b)(1), (b)(6).
determine when neglect is excusable, the court examines 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 movants acted in good faith. Lemoge v. United
States, 587 F.3d 1188, 1192 (9th Cir. 2009) (citing
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.,
507 U.S. 380, 394 (1993) (analyzing excusable neglect under
Federal Rules of Bankruptcy Procedure)); cf. Briones v.
Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.
1997) (extending Pioneer standard of excusable
neglect to Federal Rule of Civil Procedure 60(b)(1)).
a general rule, parties are bound by the actions of their
lawyers, and alleged attorney malpractice does not usually
provide a basis to set aside a judgment pursuant to Rule
60(b)(1).” Casey v. Albertsons's Inc., 362
F.3d 1254, 1260 (9th Cir. 2004) (citing Pioneer, 507
U.S. at 397). However, attorney error may constitute
excusable neglect if the Pioneer-Briones factors are
met. Bateman v. U.S. Postal Service, 231 F.3d 1220,
1223-24 (9th Cir. 2000).
case, plaintiff is not likely to suffer substantial prejudice
from reconsideration of the motion for summary judgment. If
the Subway restaurant at issue has, in fact, closed,
reconsideration of the order for injunctive relief will in no
way inhibit plaintiff's ability to frequent that
establishment. Plaintiff asserts that having to “re-try
aspects of the case that have been decided already”
constitutes prejudice. Opp'n at 3. As noted, however, the
motion for summary judgment went unopposed and was submitted
without argument. Plaintiff's argument is not persuasive
in the context of issues the court decided while defendants
were effectively in absentia. The Ninth Circuit rejected just
such an argument in Bateman, in which it reviewed
the reconsideration of summary judgment and concluded that
prejudice was insufficient to deny the motion for
reconsideration. Bateman, 231 F.3d at 1225
(“The prejudice to the Postal Service was minimal. It
would have lost a quick victory and, should it ultimately
have lost the summary judgment motion on the merits, would
have had to reschedule the trial date.”).
the delay between the court's order on summary judgment
and the motion for reconsideration was relatively short. The
court granted summary judgment on June 12, 2019. Crediting
the defendants' unchallenged assertions, they had no idea
it had been filed, let alone decided, until they received the
court's order directing them to find new counsel, issued
July 30, 2019. Defendants acted with diligence to find new
counsel, who worked quickly to unwind the damage done by Mr.
Gallagher to his clients' interests. The delay between
the order granting the motion for summary judgment and the
motion for reconsideration was less than three months; the
time between the Chans' discovery that Mr. Gallagher
could not practice law and the filing of the motion for
reconsideration, less than a month. Little activity occurred
in the case in the interim. Thus, defendants have not unduly
delayed their motion for reconsideration.
third factor, the reason for the delay, weighs in favor of
the defendants as well. Although an attorney's failure to
attend to his clients' case with due diligence rarely
amounts to excusable neglect, this case is distinguishable
from other analogous cases. See, e.g., Willis v.
JP Morgan Chase Bank, N.A., No. 2:17-CV-00366-WBS-AC,
2017 WL 5665834 at *2 (E.D. Cal. 2017) (holding counsel's
failure to calendar deadline not excusable neglect); see
also Allmerica Fin. Life Ins. & Annuity Co. v.
Llewellyn, 139 F.3d 664, 666 (9th Cir. 1997)
(“[N]either ignorance nor carelessness on the part of
the litigant or his attorney provide grounds for relief under
Rule 60(b)(1).”) (modified by Bateman, 231
F.3d at 1223-24). Generally, courts disapprove of attempts to
reconsider attorney errors that are simply run-of-the-mill
ineptitude. In other cases involving attorney error, the
movants continued to act through the attorneys whose errors
they were attempting to remedy. See, e.g., Yeschick v.
Mineta, 675 F.3d 622, 628 (6th Cir. 2012) (attorney
continued in case after failure to timely remedy defunct
email address); see also Willis, 2017 WL 5665834 at
*1 (attorney continued in ...