Mark Garden v. County of Los Angeles ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 8 2021
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
MARK JULLIAN GARDEN, No. 20-56192
Plaintiff-Appellant, D.C. No. 2:19-cv-01529-CJC-MAA
v.
MEMORANDUM*
COUNTY OF LOS ANGELES;
JONATHAN P. SCHNERENGER, Deputy;
IVAN BRESCIANI, Deputy; DOES, 1
through 100, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted November 8, 2021
Pasadena, California
Before: COLLINS and LEE, Circuit Judges, and BAKER,** Judge.
Plaintiff-Appellant Mark Jullian Garden appeals the district court’s denial of
his motion for relief from judgment under Federal Rules of Civil Procedure
60(b)(1) and 60(b)(6). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm in part, vacate in part, and remand.
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
I
In this action under 42 U.S.C. § 1983, Garden alleges that Los Angeles
County Sheriff Deputies Defendants Jonathan P. Schnerenger and Ivan Bresciani
committed multiple constitutional violations in connection with his August 2015
arrest and that they and the County should be held liable.
In July 2020, Defendants’ counsel (Scott Carpenter) reached out to
Plaintiff’s counsel (James Bryant) in an effort to meet and confer about a
contemplated summary judgment motion, as required by the local rules. See C.D.
Cal. Local Civ. Rule 7-3. Under the then-operative schedule, the last date on
which such motions could be set for hearing was August 24, 2020, and that meant
that the motion had to be filed no later than July 27, 2020. See id. Rule 6-1. On
July 24, Bryant responded to Carpenter by email, noting that he wanted to take
certain in-person depositions, but that had not been possible due to the situation
with Covid in Los Angeles. Defendants proceeded to file the summary judgment
motion by the July 27 deadline. Because that motion was noticed for hearing on
August 24, Garden’s opposition to that motion was due one week later, on August
3, 2020. See id. Rule 7-9.
Garden did not file any opposition by that deadline, however. Instead, on
August 11, 2020, Bryant emailed Carpenter and proposed that, in light of the
difficulties created by the pandemic, both sides stipulate to a “new proposed
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scheduling order” under which the hearing on the summary judgment would be
continued “pending completion of discovery,” including the depositions of the
officer defendants. After a further exchange of emails, the two counsel eventually
spoke by phone on August 18 and agreed in principle to propose a new schedule to
the court. Bryant agreed to draft the proposed stipulation and to send it to
Carpenter the next day.
Later that same day, however, the district court issued an order cancelling
the summary judgment hearing (which was still six days off) and granting the
summary judgment motion on the merits. Garden filed a timely motion for relief
from judgment, asserting that relief was warranted under Rule 60(b)(1) due to
Bryant’s “excusable neglect.” Specifically, Garden argued that Bryant had been
unable to take in-person depositions of the defendant officers due to the pandemic
and that Bryant had undertaken “steps to avoid an unopposed motion for summary
judgment being ruled on” by conferring with defense counsel “and agreeing on a
stipulation which would have prevented this scenario.” Garden argued that, under
the four-factor test set forth in Pioneer Investment Services Co. v. Brunswick
Associates Ltd. Partnership, 507 U.S. 380, 395 (1993), his counsel’s neglect was
excusable. Alternatively, Garden contended that relief was warranted under Rule
60(b)(6), which authorizes relief from judgment based on “any other reason that
justifies relief.” The district court denied the motion and Garden timely appeals.
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II
We review the denial of a motion under Rule 60 for abuse of discretion, see
Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989), but a district court necessarily
abuses its discretion when it “base[s] its decision on an erroneous legal standard or
clearly erroneous findings of fact,” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir.
2012) (internal quotation omitted). Here the district court denied the motion on the
grounds that Garden had failed to show that his counsel’s “inadvertence or neglect
was excusable and due to circumstances beyond his control.” Specifically, the
court stated that Garden’s motion rested “solely” on his counsel’s “inability to
conduct in-person depositions due to the ongoing coronavirus pandemic,” and the
court concluded that, in light of the availability of “videoconference depositions,”
this consideration did not show “excusable neglect or other reason justifying relief
from judgment.” We affirm the district court’s denial of relief under Rule
60(b)(6), but we vacate its ruling with respect to Rule 60(b)(1).
A
We have held that, in determining whether a judgment should be set aside
under Rule 60(b)(1) based on asserted “excusable neglect,” the district court
should apply the test set forth in Pioneer. See Briones v. Riviera Hotel & Casino,
116 F.3d 379, 381–82 (9th Cir. 1997). Under Pioneer, the “determination of
whether a party’s neglect is excusable ‘is at bottom an equitable one, taking
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account of all relevant circumstances surrounding the party’s omission.’” Id. at
382 (quoting Pioneer, 507 U.S. at 395). Among the “relevant circumstances” to be
considered are “[1] the danger of prejudice to the [nonmovant], [2] the length of
the delay and its potential impact on judicial proceedings, [3] the reason for the
delay, including whether it was within the reasonable control of the movant, and
[4] whether the movant acted in good faith.” Pioneer, 507 U.S. at 395. These
“four enumerated factors,” however, are “not an exclusive list.” Briones, 116 F.3d
at 381.
Here, the district court’s order does not mention or apply any of the Pioneer
factors. Defendants nonetheless argue that the district court’s failure to apply
Pioneer was not legal error, because in their view Pioneer is inapplicable here as a
matter of law. According to Defendants, there is no predicate “neglect” to warrant
consideration of the Pioneer factors in this case, because Bryant’s failure to timely
respond to the summary judgment motion by August 3 was a conscious decision
and not the result of negligence. We think this focus is too narrow. The record
reflects that, shortly before the then-current due date for filing the summary
judgment motion, Bryant specifically alerted opposing counsel of Garden’s need to
complete certain discovery, and it further reflects that, after the summary judgment
motion was filed, Bryant apparently thought that he still had time to request a
revised schedule so long as he did so before the hearing date on the motion.
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Indeed, Garden’s motion specifically relied on his counsel’s efforts to come to
agreement with defense counsel on a revised schedule precisely “to avoid an
unopposed motion for summary judgment being ruled on.” Bryant was, of course,
wrong in thinking that he had time to work out a revised schedule, but that is a
form of neglect that should have been considered under Pioneer. Because there is
no indication in the district court’s order that it applied the Pioneer standard or
considered the relevant factors, the court applied the incorrect legal standard. See
M.D. v. Newport-Mesa Unified Sch. Dist., 840 F.3d 640, 643 (9th Cir. 2016);
Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224 (9th Cir. 2000). We therefore
vacate its denial of Garden’s request for relief under Rule 60(b)(1).
Garden asks us to weigh the Pioneer factors ourselves, but we agree with
Defendants that, in the circumstances of this case, the district court should
undertake this analysis in the first instance. We note, however, that the district
court’s order could be read to wrongly suggest that, to obtain relief here, Garden
was required to show that his neglect was “due to circumstances beyond his
control.” Such a lack of control is a relevant factor that should be considered, but
Pioneer explicitly rejects the view that the “excusable neglect” standard is “limited
to situations where the failure to timely file is due to circumstances beyond the
control of the filer.” 507 U.S. at 391. The standard, as the Court explained, is a
more “flexible” one, id. at 389, and the district court erred to the extent that it
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applied a stricter standard here. Moreover, in evaluating each of the Pioneer
factors on remand, the district court should give due weight to the fact that the
parties apparently had agreed to a revised schedule, as well as to the fact that some
adjustment of the one-week schedule for filing an opposition in this case may well
have been warranted.
Accordingly, we remand to the district court with instructions to apply the
relevant Pioneer factors in making the overall “equitable” determination whether
there was excusable neglect, “taking account of all relevant circumstances
surrounding the party’s omission.” Id. at 395.
B
We affirm, however, the district court’s denial of relief under Rule 60(b)(6).
The Pioneer Court made clear that that rule may not be invoked as a substitute for
Rule 60(b)(1). “To justify relief under subsection (6), a party must show
‘extraordinary circumstances’ suggesting that the party is faultless in the delay.”
507 U.S. at 393. Where, as here, a party or its counsel “is partly to blame for
delay, relief must be sought within one year under subsection (1) and the party’s
neglect must be excusable.” Id. Rule 60(b)(6) thus provides no basis for relief.
AFFIRMED in part, VACATED in part, and REMANDED.
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