Urmancheev v. United States ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 A.S. URMANCHEEV, Case No.: 22-CV-1039 JLS (MDD) #A075117610, 12 ORDER (1) VACATING ORDER OF Plaintiff, 13 DISMISSAL, (2) CONDITIONALLY v. GRANTING MOTION FOR LEAVE 14 TO ELECTRONICALLY FILE 15 DOCUMENTS, AND (3) GRANTING UNITED STATES; MERRICK MOTION FOR EXTENSION OF 16 GARLAND; ALEJANDRO TIME TO FILE MAYORKAS; DEP’T OF HOMELAND 17 SECURITY; and ICE OFFICERS, 18 Defendants. (ECF Nos. 5, 6, 7 & 8) 19 20 Presently before the Court are granted Plaintiff A.S. Urmancheev’s Notice of 21 Change of Address (ECF No. 6), Motion for Leave for Use of Case Management/Electronic 22 Case Filing System Utilizing Public Access to Court Electronic Records in Forma Pauperis 23 (“CM/ECF Mot.,” ECF No. 7), and Motion for Enlargement of Time to File First Amended 24 Complaint (“Mot. to Extend,” ECF No. 8). 25 On October 5, 2022, the Court granted Plaintiff A.S. Urmancheev’s application for 26 in forma pauperis status and dismissed without prejudice his Complaint pursuant to 28 27 U.S.C. § 1915(b). See generally ECF No. 3. The Court granted Plaintiff forty-five days’ 28 leave to file an amended complaint. See id. On December 2, 2022, the Court dismissed 1 this action without prejudice in light of Plaintiff’s failure to file an amended complaint in 2 a timely manner. See generally ECF No. 5 (“Order”). 3 Plaintiff now requests a ninety-day extension of his time to file an amended 4 complaint “because Court’s Order to Dismiss Complaint with Leave to Amend was 5 erroneously mailed to unknown address and returned as undeliverable, according to the 6 Clerk of Court.” Mot. to Extend at 1. The Court, in its discretion, liberally construes 7 Plaintiff’s filing as additionally seeking relief from the Order, which closed this case. See 8 generally id. Finally, Plaintiff seeks leave to file documents electronically. See generally 9 CM/ECF Mot. Having considered Plaintiff’s filings and the law, the Court GRANTS 10 Plaintiff’s Motion to Extend and CONDITIONALLY GRANTS his CM/ECF Motion. 11 MOTIONS FOR RELIEF FROM AN ORDER AND TO EXTEND TIME 12 Pursuant to Federal Rule of Civil Procedure 60(b), “[o]n motion and just terms, the 13 court may relieve a party or its legal representative from a final judgment, order, or 14 proceeding for . . . (1) mistake, inadvertence, surprise, or excusable neglect[.]” Such a 15 motion must be made “no more than a year after the entry of the judgment.” Id. 60(c)(1). 16 “[T]he determination of whether neglect is excusable is an equitable one that depends on 17 at least four factors,” including, but not limited to, “(1) the danger of prejudice to the 18 opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) 19 the reason for the delay; and (4) whether the movant acted in good faith.” Bateman v. U.S. 20 Postal Serv., 231 F.3d 1220, 1223–24 (9th Cir. 2000) (citing Pioneer Inv. Servs. Co. v. 21 Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). 22 Federal Rule of Civil Procedure 6(b) permits a court to extend, for good cause, a 23 deadline after its expiration “if the party failed to act because of excusable neglect.” Fed. 24 R. Civ. P. 6(b)(1)(B). “This rule, like all the Federal Rules of Civil Procedure, ‘[is] to be 25 liberally construed to effectuate the general purpose of seeing that cases are tried on the 26 merits.’” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258–59 (9th Cir. 2010) 27 (citations omitted). The same factors apply in assessing “excusable neglect” under Rules 28 60(b) and 6(b). See Pioneer, 507 U.S. at 392–93. 1 Here, Plaintiff neglected to timely alert the Court to a change in his mailing address, 2 leading to him missing the deadline to amend his complaint. See, e.g., ECF No. 4 (copy of 3 mail containing October 5, 2022 Order addressed to Plaintiff at Otay Mesa Detention 4 Center returned as undeliverable because addressee was “no longer in custody”); ECF No. 5 6 (Plaintiff’s Notice of Change of Address, indicating that Plaintiff has relocated to 6 Earlysville, Virginia, dated November 3, 2022, but not postmarked until December 1, 2022, 7 and not received until December 5, 2022). The Court notes, for Plaintiff’s benefit, that 8 Plaintiff, despite being unrepresented by counsel, is bound by this District’s Local Rules1 9 and the Federal Rules of Civil Procedure.2 See S.D. Cal. CivLR 83.11(a). The Local Rules 10 require pro se litigants, like Plaintiff, to “keep the Court and opposing parties advised as to 11 current address.” Id. 83.11(b). 12 However, applying the Pioneer factors, the Court finds that Plaintiff’s failure to 13 comply with the Order and timely amend his Complaint constituted excusable neglect 14 meriting relief. “Critically, the record is devoid of any indication either that [Plaintiff] 15 acted in bad faith or that an extension of time would prejudice defendants.” Ahanchian, 16 624 F.3d at 1260. Defendants have yet to be served, and thus there is no prejudice to them. 17 Nor does it appear that Plaintiff’s failure to comply with the Local Rules or the Federal 18 Rules of Civil Procedure by timely informing this Court of his new address or requesting 19 an extension of time in which to amend was done willfully in bad faith. Pro se parties are 20 to be afforded some liberality, and the length of the delay here is not significant. 21 Accordingly, the Court finds it appropriate to grant relief from its December 2, 2022 Order 22 and extend the time in which Plaintiff is to file an amended complaint. 23 Accordingly, the Court GRANTS Plaintiff’s Motion to Extend (ECF No. 8). 24 Pursuant to Federal Rule of Civil Procedure 60(b)(1), the Court VACATES its December 25 26 1 Available at https://www.casd.uscourts.gov/ assets/pdf/rules/2022.08.01%20Local%20Rules.pdf. 27 2 Available at 28 1 2, 2022 Order (ECF No. 5) dismissing and closing this action, and, pursuant to Federal 2 Rule of Civil Procedure 6(b)(1)(B), the Court GRANTS Plaintiff’s request to extend the 3 time in which he is to file an amended complaint. Plaintiff SHALL FILE his amended 4 complaint within ninety (90) days of the date on which this Order is electronically 5 docketed. 6 CM/ECF MOTION 7 Generally, “[e]xcept as prescribed by local rule, order, or other procedure, the Court 8 has designated all cases to be assigned to the Electronic Filing System.” S.D. Cal. CivLR 9 5.4(a). With respect to pro se litigants, however, “[u]nless otherwise authorized by the 10 court, all documents submitted for filing to the Clerk’s Office . . . must be in legible, paper 11 form.” Office of the Clerk, United States District Court for the Southern District of 12 California, Electronic Case Filing Administrative Policies and Procedures Manual, § 2(b) 13 (Sept. 27, 2022) [hereinafter “ECF Manual”], available at https://www.casd.uscourts.gov/ 14 _assets/pdf/cmecf/Electronic%20Case%20Filing%20Procedures%20Manual.pdf. “A pro 15 se party seeking leave to electronically file documents must file a motion and demonstrate 16 the means to do so properly by stating their equipment and software capabilities in addition 17 to agreeing to follow all rules and policies in the CM/ECF Administrative Policies and 18 Procedures Manual.” Id. The ECF Manual refers to the Court’s official website for 19 CM/ECF technical specifications, id. at § 1(i), which include a “[c]omputer running on 20 Windows or Macintosh”; “[s]oftware to convert documents from a word processor format 21 to portable document format (PDF),” such as “Adobe Acrobat 7.0 and higher”; “[i]nternet 22 access supporting a transfer rate of 56kb or higher”; a compatible browser, such as “Firefox 23 15, Internet Explorer 9, and Safari 5.1/6 or later version”; a “[s]canner to image non- 24 computerized documents 400 pixels per inch (ppi)”; and a PACER account. United States 25 District Court, Southern District of California, CM/ECF Information: General 26 Information, https://www.casd.uscourts.gov/cmecf.aspx (last visited Dec. 6, 2022). 27 Here, Plaintiff has provided no particulars about his access to technology 28 conforming to the CM/ECF technical specifications noted above, instead reciting only that 1 || “Plaintiff may access the internet, equipment and software which satisfy the requirements 2 installed by the Courts”; nor has Plaintiff agreed to be bound by the rules and policies in 3 ECF Manual. CM/ECF Mot. at 1. However, the Court is mindful of the logistical 4 || difficulties Plaintiff, now apparently residing in Virginia, faces as a result of not being able 5 ||to electronically file in this matter. Accordingly, the Court CONDITIONALLY 6 || GRANTS Plaintiff's CM/ECF Motion (ECF No. 7). Plaintiff SHALL REGISTER as a 7 || user with the Clerk’s Office and as a subscriber to PACER per section 2(b) of the ECF 8 || Manual and SHALL FILE, within fourteen (14) days of the date on which this Order is 9 ||electronically docketed, confirmation of his agreement to abide by the ECF Manual. 10 || Should Plaintiff fail to comply with these requirements, the Court may revoke □□□□□□□□□□□ 11 || electronic filing privileges. 12 CONCLUSION 13 In light of the foregoing and good cause appearing, the Court GRANTS □□□□□□□□□□ □ 14 || Motion to Extend (ECF No. 8) and CONDITIONALLY GRANTS Plaintiff?s CM/ECF 15 || Motion (ECF No. 7). The Court VACATES the December 2, 2022 Order (ECF No. 5) 16 |}and DIRECTS the Clerk of the Court to reopen this matter. Plaintiff SHALL FILE (1) 17 ||confirmation of his agreement to abide by the ECF Manual within fourteen (14) days of 18 date on which this Order is electronically docketed, and (2) his amended complaint 19 || within ninety (90) days of the date on which this Order is electronically docketed. 20 IT IS SO ORDERED. 21 Dated: December 16, 2022 . tt 22 jen Janis L. Sammartino 33 United States District Judge 24 25 26 27 28