Alice Giannetta v. David Marmel

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALICE LEE GIANNETTA, Esquire, No. 21-56142
Plaintiff-Appellant, D.C. No. 5:20-cv-01410-RGK-KK
v.
MEMORANDUM*
DAVID MARMEL, individually and as CEO
of Mrs World, Inc.; TANA JOHNSON,
individually and as Vice President of Mrs
World, Inc.; MRS WORLD, INC.,
Defendants-Appellees,
and
ABC CORPORATION 1-10; JOHN DOE;
JANE DOE,
Defendants.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted January 18, 2023**
Before: GRABER, PAEZ, and NGUYEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Alice Lee Giannetta appeals pro se from the district court’s order denying
her Federal Rule of Civil Procedure 60(b)(1) motion for relief from the judgment
dismissing the action for lack of prosecution. We have jurisdiction under 28
U.S.C. § 1291. We review for an abuse of discretion. Briones v. Riviera Hotel &
Casino, 116 F.3d 379, 380 (9th Cir. 1997). We reverse and remand.
Rule 60(b)(1) provides that a court may relieve a party or a party’s legal
representative from a final judgment on the basis of excusable neglect. Whether
neglect is excusable is an equitable determination and “depends on at least four
factors: (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.” Bateman v. United States Postal
Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000). Here, the district court failed to
engage in the appropriate equitable analysis. Having conducted the analysis
ourselves, we conclude that Giannetta is entitled to relief under Rule 60 in light of
the minimal prejudice to defendants, short length of delay, and Giannetta’s
apparent good faith. See id. at 1224, 1225 n.3 (reversing denial of motion for relief
from judgment where the district court’s decision did not mention three of the
equitable factors). We reverse the judgment and remand to the district court for
further proceedings.
We do not consider matters raised for the first time on appeal. See Padgett
2 21-56142
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
REVERSED and REMANDED.
3 21-56142