“The 25 Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading’ 26 of pro se litigants. . . . This rule is particularly important in civil rights cases.”
How later courts described this case
- “The 25 Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading’ 26 of pro se litigants. . . . This rule is particularly important in civil rights cases.”
- “The statute makes it clear that the district judge must review the magistrate judge’s 19 findings and recommendations de novo if objection is made, but not otherwise.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 TOMMY NAVARRETTE, Case No.: 3:22-cv-0006-LL-AHG
12 Plaintiff, REPORT AND
RECOMMENDATION
13 v.
RECOMMENDING THE COURT:
14 ROBIN WREN,
(1) GRANT PLAINTIFF’S MOTION
15 Defendant.
TO SET ASIDE JUDGMENT BASED
16 ON EXCUSABLE NEGLECT; and
17
(2) EXTEND DEADLINE FOR
18 PLAINTIFF TO FILE OPPOSITION
TO MOTION TO DISMISS
19
20
[ECF Nos. 26, 35, 37]
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23 Before the Court is Plaintiff’s Motion to Set Aside Motion to Dismiss, and, if
24 Necessary, Default Judgment, Case Dismissal, for Mistake, Inadvertence, and Excusable
25 Neglect (“Motion to Set Aside Judgment”). ECF No. 37. For the reasons that follow, the
26 undersigned recommends the Court GRANT the motion and allow Plaintiff a further
27 opportunity to file an opposition to Defendant’s Motion to Dismiss (ECF No. 26).
28
1 I. PROCEDURAL BACKGROUND
2 Plaintiff, who is proceeding pro se, first filed this civil rights action on
3 January 4, 2022, and filed his First Amended Complaint (“FAC”) on March 25, 2022,
4 bringing claims against Robin Wren, a Homeland Security Investigations Special Agent
5 for the Department of Homeland Security. ECF No. 1. On May 16, 2022, upon screening
6 of the FAC, the Court found that Plaintiff stated a plausible claim against Defendant Wren
7 for false arrest pursuant to the Fourth Amendment and Bivens v. Six Unknown Named
8 Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), sufficient to survive screening
9 under 28 U.S.C. § 1915(e)(2). ECF No. 9 at 3-4. The Court accordingly ordered the U.S.
10 Marshal Service to effect service on Defendant Wren and required her to file a responsive
11 pleading to the FAC. Id. at 4-5.
12 On January 24, 2023, Defendant Wren filed a Motion to Dismiss the FAC, arguing
13 that Plaintiff’s constitutional claims present unwarranted extensions of Bivens, that
14 Plaintiff’s state constitutional claim is precluded by law, and that Defendant is entitled to
15 qualified immunity. ECF No. 26. Plaintiff failed to file any opposition to the Motion to
16 Dismiss the FAC, despite being given a sua sponte extension of time to do so and being
17 warned that failure to respond could properly be construed as consent to grant the motion.
18 ECF No. 31; see CivLR 7.1(f)(3)(c) (explaining that the non-moving party’s failure to file
19 an opposition to a motion “may constitute a consent to the granting of a motion”); Ghazali
20 v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (upholding a lower court’s application of a similar
21 Local Rule, and finding that a motion to dismiss may be granted as unopposed where a pro
22 se litigant fails to file any response because “pro se litigants are bound by the rules of
23 procedure”). However, notwithstanding the Ninth Circuit authority affirming the propriety
24 of dismissal under similar circumstances, the undersigned issued a Report and
25 Recommendation (“R&R”) addressing the Motion to Dismiss on the merits rather than
26 recommending the Court grant the motion based solely on Defendant’s failure to respond.
27 ECF No. 33 at 5-16.
28 In the R&R, the undersigned recommended that the Court grant Defendant’s Motion
1 to Dismiss in its entirety and dismiss the action with prejudice, on the grounds that, even
2 assuming all facts in the FAC as true, (1) Plaintiff’s state constitutional claim against
3 Defendant Wren fails, because Article 1, Section 7(a) of the California Constitution does
4 not create a private right of action; (2) Plaintiff did not state a claim under the Bane Act;
5 (3) to the extent Plaintiff’s state-law claims could be construed as tort claims, Defendant
6 Wren is entitled to immunity against such claims under the Westfall Act; (4) Plaintiff’s
7 claim for declaratory judgment that Defendant violated his rights under the California
8 Constitution was not justiciable, because past acts cannot be the basis for declaratory
9 judgment; and (5) under binding Supreme Court precedent, Plaintiff’s federal
10 constitutional claims against Defendant Wren represented an unwarranted extension of the
11 Bivens remedy. Id. The parties were given a deadline of May 25, 2023 to file objections to
12 the R&R. Id. at 16. Neither party did so.
13 On June 1, 2023, the Court issued an Order Adopting the R&R and Granting the
14 Motion to Dismiss with Prejudice (“Order of Dismissal”). ECF No. 34. In the Order of
15 Dismissal, the Court noted that neither party filed an objection to the R&R, and further
16 stated that it had reviewed the R&R and found that it was “thorough, well-reasoned, and
17 contains no clear errors.” Id. at 2. The Court thus adopted the R&R in its entirety, dismissed
18 the case with prejudice, and directed the Clerk of Court to close the case. Id.
19 On June 2, 2023, Plaintiff filed the instant motion, requesting that the Court set aside
20 the dismissal of his case. ECF No. 37. Plaintiff erroneously frames the motion as a request
21 to “set aside the entry of default . . . under FRCP 55(c)[,]” although there was no default
22 judgment in this action. Id. at 1-2. However, considering Plaintiff’s pro se status, the Court
23 construes the motion liberally as a motion for relief from judgment under Federal Rule of
24 Civil Procedure 60(b)(1). See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The
25 Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading’
26 of pro se litigants. . . . This rule is particularly important in civil rights cases.”) (citations
27 omitted); see also ECF No. 37 at 3, 4 (Plaintiff quoting and properly applying Rule 60(b)(1)
28 to his argument in certain portions of the motion).
1 II. LEGAL STANDARD
2 Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, a party may move
3 the Court for relief from judgment on the following grounds: (1) mistake, inadvertence,
4 surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable
5 diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
6 (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void;
7 (5) the judgment has been satisfied, released, or discharged, or it is based on an earlier
8 judgment that has been reversed or vacated, or applying it prospectively is no longer
9 equitable; or (6) any other reason justifying relief. Fed. R. Civ. P. 60(b). Rule 60(b) “is
10 remedial in nature and therefore must be liberally applied. . . . Whenever it is reasonably
11 possible, cases should be decided upon their merits.” Pena v. Seguros La Comercial, S.A.,
12 770 F.2d 811, 814 (9th Cir. 1985) (internal citation omitted).
13 “[A]t least for purposes of Rule 60(b), ‘excusable neglect’ is understood to
14 encompass situations in which the failure to comply with a filing deadline is attributable to
15 negligence.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 394
16 (1993). The determination of whether a party has shown “excusable neglect” under Rule
17 60(b)(1) is “at bottom an equitable one, taking account of all relevant circumstances
18 surrounding the party’s omission.” Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381-
19 82 (9th Cir. 1997) (quoting Pioneer, 507 U.S. at 395). Factors that must be considered in
20 making this determination include (1) the danger of prejudice to the non-movant, (2) the
21 length of the delay and its potential impact on judicial proceedings, (3) the reason for the
22 delay, including whether it was within the reasonable control of the movant, and (4)
23 whether the movant acted in good faith. Pioneer, 507 U.S. at 395. See also Briones, 116
24 F.3d at 381 (holding that “the equitable test set out in Pioneer applies to Rule 60(b)”).
25 “These four enumerated factors, while not an exclusive list, provide a framework with
26 which to determine whether missing a filing deadline constitutes ‘excusable’ neglect.” Id.
27 III. DISCUSSION
28 In the Motion to Set Aside Judgment, Plaintiff explains that he was homeless for a
1 period of time beginning in December 2022, and that both his car and phone were stolen.
2 ECF No. 37 at 2. When Plaintiff lost his phone, he also lost access to the files and
3 information related to his case as well as his email accounts, which were protected by two-
4 factor authentication. Id. Plaintiff states that he “had to direct focus on where he would eat,
5 sleep, use the bathroom, and on making his way out of homelessness” during this period
6 of time, and that he “was never properly served, notified, and or had any idea as to what
7 was taking place in the case or had an opportunity to respond to defendant’s motion to
8 dismiss.” Id. By the time Plaintiff regained “access to his I-Cloud Account and files, the
9 case had been dismissed.” Id.
10 As discussed, the applicable framework for whether Plaintiff has established that his
11 failure to respond to Defendant’s Motion to Dismiss or to the R&R recommending that the
12 Court grant the Motion to Dismiss constitutes “excusable neglect” involves consideration
13 of at least four enumerated factors: the danger of prejudice to Defendant if the dismissal is
14 set aside, the length of the delay and its potential impact on the proceedings, the reason for
15 Plaintiff’s delay, and whether Plaintiff acted in good faith. Each of these factors weighs in
16 favor of finding that Plaintiff’s failure to meet his filing deadlines was the result of
17 excusable neglect. Given the “flexible understanding” of the “excusable neglect” standard
18 that is mandated by the Supreme Court, the Court should find that Plaintiff’s reasons for
19 missing his filing deadlines satisfy this four-factor test. Pioneer, 507 U.S. at 389.
20 First, the length of the delay is minimal. Plaintiff filed a Notice of Change of Address
21 and the instant Motion to Set Aside Judgment on June 2, 2023, only one day after the Court
22 adopted the R&R and dismissed the case, and 8 days after the missed objections deadline
23 of May 25, 2023. ECF Nos. 33, 36, 37. Second, Plaintiff’s reason for the delay is that he
24 became homeless, had his car and phone stolen, and lost all access to information about his
25 case for an extended period of time, and that he had no notice of the activity in his case
26 during that time period. Therefore, Plaintiff’s failure to meet his deadlines to oppose the
27 Motion to Dismiss and to object to the R&R is attributable to the fact that he was not
28 receiving the mailings in this case that were sent to his previous address of record, and he
1 was unable to access information about the case using his phone. On the other hand, the
2 Local Rules require parties proceeding pro se to “keep the Court and opposing parties
3 advised as to current address.” CivLR 83.11(b). Although Plaintiff had no phone and was
4 not receiving mail at his previous address of record, Plaintiff does not explain why he was
5 unable to send physical mail to the Clerk of Court with an updated address until June 2,
6 2023. Nonetheless, particularly given that Rule 60(b) “must be liberally applied,” the Court
7 finds that Plaintiff’s explanation that he was singularly focused on immediate physical
8 needs such as food, sleep, and shelter rather than this litigation during his period of
9 homelessness is a plausible and understandable reason for his delay. Third, there is no
10 evidence or indication that Plaintiff acted in bad faith or for the purpose of delaying the
11 proceedings.
12 The last factor to examine is danger of prejudice to Defendant if the dismissal is set
13 aside. Because the Motion to Dismiss should be granted in full on its merits, the danger of
14 prejudice to Defendant if Plaintiff were allowed to file a belated Opposition or belated
15 Objections to the R&R is minimal. In the R&R, the undersigned addressed Defendant’s
16 Motion to Dismiss on the merits and recommended dismissal of the action with prejudice
17 because Plaintiff stated no cognizable claims in his FAC, not based on Plaintiff’s
18 procedural default in failing to respond to the motion. Therefore, if the Court were to set
19 aside the dismissal of this action, Defendant would not be required to participate in the case
20 again unless Plaintiff files an opposition to the Motion to Dismiss—or, later, objections to
21 the R&R—that the Court finds meritorious. It is highly unlikely that Plaintiff could file a
22 meritorious opposition or objections where, as here, the only claim that apparently survived
23 screening is Plaintiff’s Fourth Amendment claim against federal agent Defendant Wren
24 pursuant to Bivens, and there is controlling Supreme Court precedent directly on point that
25 putative Bivens claims cannot lie against a federal agent based on the agent’s conduct in
26 enforcing border security. Egbert v. Boule, 142 S. Ct. 1793 (2022); Hernández v. Mesa,
27 140 S. Ct. 735 (2020). Further, even assuming that Plaintiff’s other claims in his FAC
28 survived screening, as explained in the R&R, they are not cognizable either. See ECF No.
1 33 at 8-11. Although setting aside the judgment and reopening the case would delay its
2 resolution, “[p]rejudice requires greater harm than simply that relief would delay resolution
3 of the case.” Lemoge v. United States, 587 F.3d 1188, 1196 (9th Cir. 2009). Therefore, the
4 Court should find all four factors of the equitable test have been met and should accordingly
5 grant Plaintiff’s motion and set aside the judgment in this case.
6 Admittedly, for the same reasons explained in the analysis of the prejudice factor,
7 the Court could arguably be justified in denying Plaintiff’s Motion to Set Aside Judgment
8 because the motion does not address the actual basis of the Court’s judgment in this action.
9 That is, even finding that Plaintiff’s failure to meet his filing deadlines constitutes
10 excusable neglect, that neglect was not the basis of the Court’s dismissal of his complaint.
11 See Manzano v. Cal. Dep’t of Motor Vehicles, 467 F. App’x 683, 685 (9th Cir. 2012)
12 (upholding the lower court’s denial of a litigant’s 60(b)(1) motion to set aside dismissal,
13 because “the neglect that [the plaintiff] sought to have the court excuse—his failure to file
14 a timely second amended complaint—was not the basis for the district court’s dismissal of
15 the action. The action was dismissed because [he] failed to file a response to the state’s
16 motion to dismiss. The district court was therefore correct to deny [the plaintiff’s]
17 application, which did not address the actual basis of the judgment”).
18 Similarly, here, Plaintiff’s Motion to Set Aside Judgment does not “address the
19 actual basis of the judgment.” Id. Plaintiff fails to address the merits of the Motion to
20 Dismiss or the findings and recommendations in the R&R in any substantive way, beyond
21 stating in a cursory fashion that “[t]here appear to be numerous defenses, both factual and
22 legal, in this case.” ECF No. 37 at 5. The bulk of the Motion to Set Aside Judgment is made
23 up of irrelevant and inapplicable arguments that appear to be from a pre-written template
24 containing alternative arguments presented in brackets. And even in the sections that are
25 relevant to his Rule 60(b) motion, Plaintiff has left bracketed template language, without
26 making any substantive effort to grapple with the applicable factors. For example, after
27 urging the Court to set aside the judgment in this case for “excusable neglect” pursuant to
28
1 Rule 60(b)(1), Plaintiff presents the following arguments in support:
2 Here, first, the party seeking to set aside the default did not engage in
culpable conduct that led to the default. Rather, the declaration of the plaintiff
3
sets forth that the plaintiff [provided any facts supporting this defense].
4 Second, the plaintiff has numerous meritorious defenses, as set forth in
the heading below.
5
Third, there is no ‘default judgment’ to be reopened that would
6 prejudice the other party. Rather, no default judgment has been entered.
7 Id. at 4 (brackets in original).
8 In “the heading below” where Plaintiff purportedly shows that he “has numerous
9 meritorious defenses,” as referenced above, Plaintiff argues that he will present “a
10 Meritorious Defense to All Causes of Action in the Response to [the] Motion to Dismiss.”
11 Id. But, in support, Plaintiff again merely provides bracketed template language without
12 any substantive argument to the Court, stating, “Explained below are the meritorious
13 defenses as relevant to setting aside the default. [Explain the law on the causes of action
14 alleged in the complaint and why the defendants won’t prevail, e.g., a particular element is
15 not alleged in the complaint and/or there are any fact showing a defense to the action.]” Id.
16 Nonetheless, the “excusable neglect” standard is an equitable concept that “must be
17 liberally applied.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1262 (9th Cir. 2010)
18 (citation omitted). Although the R&R addresses Defendant’s Motion to Dismiss on the
19 merits rather than recommending it be granted on a procedural technicality, the Ninth
20 Circuit has held it was an abuse of discretion for a trial court to deny a Rule 60(b) motion
21 under similar circumstances, where a plaintiff failed to timely oppose a summary judgment
22 motion and where, as here, the four-factor equitable test for excusable neglect for missing
23 the filing deadline was met, notwithstanding that the case was decided on the merits and
24 not by default judgment. Gravatt v. Paul Revere Life Ins. Co., 101 F. App’x 194, 195-97
25
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27 1 In this section, Plaintiff presents case law applicable to setting aside a default judgment.
As discussed, the dismissal of Plaintiff’s action does not constitute a default judgment, but
28 the Court liberally construes his motion as a motion to set aside the judgment entered
1 (9th Cir. 2004). Reversing the decision, the Gravatt court explained that the trial court
2 “overstated the significance of the fact that [the] case was decided on the merits, not by
3 default judgment[,]” and emphasized that, no matter how careful and methodical the
4 court’s consideration of the summary judgment motion was, “there is a big difference
5 between considering the motion sua sponte and doing so with the benefit of adversarial
6 briefing.” Id. at 196.
7 Applying that rationale, the Court should not deny Plaintiff the opportunity to submit
8 adversarial briefing on the Motion to Dismiss where the equitable test for excusable neglect
9 to meet his filing deadlines has been met, notwithstanding the high likelihood that his
10 opposition will be without merit. As it stands, the Court can only speculate as to what
11 Plaintiff might have stated in his Opposition to the Motion to Dismiss or Objections to the
12 R&R. Significantly, had Plaintiff timely filed objections to the R&R, the Court would have
13 been required to apply a de novo standard of review under 28 U.S.C. § 636(b)(1), rather
14 than the far more deferential “clear error” standard, requiring only that the Court “satisfy
15 itself that there is no clear error on the face of the record in order to accept the
16 recommendation.” Fed. R. Civ. P. 72, advisory committee’s note to 1983 amendment
17 (citation omitted); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
18 2003) (“The statute makes it clear that the district judge must review the magistrate judge’s
19 findings and recommendations de novo if objection is made, but not otherwise.”). The
20 Court made clear in its Order adopting the R&R and granting the Motion to Dismiss that it
21 was applying the “clear error” standard because there were no objections filed. ECF No.
22 34 at 2. Therefore, although Plaintiff’s arguments against dismissal of his case are not
23 likely to have merit, principles of equity counsel in favor of giving him the opportunity to
24 do so where, as here, he has established that his failure to meet his filing deadlines was the
25 result of excusable neglect, and where the ultimate entry of judgment was based on a more
26 deferential standard of review than it would have been had Plaintiff timely filed objections.
27 The key question before the Court is not whether Plaintiff will be able to avoid the
28 outcome of dismissal if he is permitted another opportunity to oppose dismissal on the
1 ||merits, but instead whether the four-factor test for “excusable neglect” as set forth in
2 || Pioneer is satisfied. For the reasons explained above, the Court should find the test has
3 || been met. Therefore, the Court should set aside the judgment in this case to permit Plaintiff
4 ||another opportunity to oppose the Motion to Dismiss on the merits. If Plaintiff files an
5 ||Opposition, the undersigned will issue a new R&R on the Motion to Dismiss with the
6 ||benefit of adversarial briefing, and the parties shall have another opportunity to file
7 || objections to the R&R thereafter.
8 IV. CONCLUSION
9 For the reasons set forth above, IT IS HEREBY RECOMMENDED that the
10 || District Court issue an Order:
11 (1) adopting this Report and Recommendation;
12 (2) setting aside the judgment in this action (ECF No. 35) and reopening the case;
13 and
14 (3) resetting the deadline for Plaintiff to file an Opposition to the Motion to Dismiss
15 (ECF No. 26) to a date two weeks after the Court enters an Order adopting this
16 Report and Recommendation.
17 If this Report and Recommendation is adopted, and Plaintiff files an Opposition to
18 Motion to Dismiss, the undersigned will take the Motion to Dismiss under submission
19 || on the papers without oral argument and will issue a new Report and Recommendation to
20 || the Court. No Reply shall be required.
21 The Court submits this Report and Recommendation to United States District Judge
22 ||Linda Lopez under 28 U.S.C. § 636(b)(1). Any party to this action may file written
23 || objections with the Court and serve a copy on all parties no later than August 24, 2023.
24 || The document should be captioned “Objections to Report and Recommendation.”
25 IT IS SO ORDERED.
26 || Dated: August 9, 2023 □
wow. Xoolasrul
27 Honorable Allison H. Goddard
28 United States Magistrate Judge