Providence Health Plan v. Manogiamanu

          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 ...