United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTION AT DOCKET 92]
JOHN
W. SEDWICK SENIOR JUDGE
I.
MOTION PRESENTED
At
docket 92, plaintiff Providence Health Plan (“the
Plan”) moves for reconsideration of the court's
order at docket 91 which dismissed this case without
prejudice. The court requested responses from defendants.
Defendant Stepovich's response is at docket 94. Defendant
Manogiamanu's response is at docket 95. The motion is now
ripe for decision.
II.
BACKGROUND
The
court issued an order at docket 89 which required counsel to
meet within 21 days, and then within 28 days to file a
scheduling and planning report. This type of order is
contemplated by Fed.R.Civ.P. 26(f) and is routinely issued in
civil litigation in federal court. The Plan's lawyer
should not have been surprised by the order nor should she
have considered it merely hortatory. The time for filing the
report ran in early March, but the report was not filed.
At
docket 88, the Plan advised that as of January 13, 2017,
settlement discussions were on-going with defendant
Manogiamanu and dismissal of that defendant was anticipated
within two weeks, which would have been near the end of
January. The order at docket 89 was filed on February 5,
2017, and explicitly stated that if the parties were actively
engaged in settlement negotiations at that time, plaintiff
must advise the court of that fact within 7 days. The Plan
gave the court no notice that settlement discussions were
still underway.
In
light of the Plan's failure to comply with the order at
docket 89, the court issued an order on March 29, 2017, which
directed the Plan to show cause within 7 days why the case
should not be dismissed for failure to comply with the order
at docket 89. The Plan did not respond. The court dismissed
the case without prejudice in an order filed at docket 91 for
failure to comply with the order at docket 90.
III.
DISCUSSION
The
motion at docket 92 asks the court to reconsider the order at
docket 91, or in the alternative for relief pursuant to
Fed.R.Civ.P. 60(b). Rule 59(e) authorizes a district court to
reconsider a previous order. However, Ninth Circuit case law
explains that reconsideration is an extraordinary remedy
which should be used sparingly, and that motions for
reconsideration should ordinarily be granted only where
“the district court is presented with newly discovered
evidence, committed clear error, or if there is an
intervening change in the controlling
law.”[1] Another basis for granting a motion for
reconsideration recognized in the Ninth Circuit arises where
the initial decision is manifestly unjust.[2]
The
motion at docket 92 does not present the court with newly
discovered evidence. The explanation for the Plan's
failure to comply with the order requiring a planning and
scheduling report was available at the time the Plan failed
to comply with the order to show cause. The motion at docket
92 does not explain how the court committed clear error.
There has been no intervening change in the controlling law.
It is not manifestly unjust to require a party to abide by
the court's orders.
The
Plan's motion refers generally to relief pursuant to
Fed.R.Civ.P. 60(b), but does not articulate which of the
several grounds recognized in section (b) the Plan relies
upon. However, it is clear that the Plan cannot be relying on
subsections (2), (3), (4) or (5). That leaves subsection (1)
which applies to “mistake, inadvertence, surprise, or
excusable neglect, ” and the catchall subdivision (6)
which applies to “any other reason which justifies
relief.” The reasons given in support of the request in
the motion at docket 92 show that the Plan is relying on
subsection (1).
The
record here does not support the proposition that there was
some mistake, inadvertence, or surprise which caused the Plan
to ignore the court's orders. Rather, the Plan's
arguments show that it is relying on excusable neglect. In
assessing whether neglect is excusable, the court must take
several factors into account, including: “(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.[3] The court will first address factor (3).
One
excuse offered for neglecting the court's orders is that
the existence of ongoing settlement negotiations with
defendant Stepovich warranted putting off responding to the
court's orders. This is untenable because the order at
docket 89 explicitly directed the Plan to advise the court if
settlement negotiations were underway, and the Plan did not
do so.
A
second excuse offered for neglecting the court's orders
is that the Plan's lawyer was traveling from March 30
thru April 6, 2017, which somehow caused her to
“miscount[] the date for filing a response to the
court's March 29, 2017 order [i.e. the order at docket
90], thinking that it was due April 7,
2017.”[4] It is not apparent to the court why a
lawyer's ability to count is ...