Metropolitan News-Enterprise


Wednesday, November 24, 2021


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Ninth Circuit Vacates Dismissal of Lawsuit Based on Week’s Delay in Filing Document


By a MetNews Staff Writer


A District Court judge erred in dismissing an action based on an attorney filing an opposition to a motion challenging the sufficiency of the complaint one week late, due to a calendaring error, the Ninth U.S. Circuit Court of Appeals declared yesterday.

 In a memorandum opinion, a three-judge panel—comprised of Circuit Judges Andrew D. Hurwitz and Kim Wardlaw, joined by District Court Judge Stephen R. Bough of the Western District of Missouri, sitting by designation—vacated a dismissal ordered by Judge Mark C. Scarsi of the Central District of California in an action brought by Curtis and Cynthia Wheeler against Orange County and certain of its employees.

The defendants moved for a dismissal based on a failure of the Wheelers to state a claim. Opposition was due 21 days before the Oct. 5, 2020 hearing, but it was filed 14 days before that hearing, and the county, in its reply called for a dismissal based on the tardiness.

Judge’s Order

On Oct. 5, Scarsi made an in chambers order saying:

“Under Local Rule 7-12, this Court ‘may decline to consider any memorandum or other document not filed within the deadline set by order or local rule. The failure to file any required document, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion...’ ”

The judge declared:

“The Court therefore finds that Plaintiffs’ late filing operates as their consent to the granting of the Motion.”

In moving for reconsideration, Irvine attorney Roger E. Naghash said in a declaration:

“Plaintiffs’ counsel received the moving papers for motion to dismiss. Upon receipt of the moving papers, the hearing was entered into a computerized calendaring system. Erroneous hearing date was entered by counsel, which in turn the computerized calendaring system, calculated the wrong due date for filing of opposition papers. Upon discovering the calendaring mishap, Plaintiffs’ counsel immediately, prepared and filed a declaration informing the opposing counsel as well as the court. Plaintiffs, seek relief from the judgment of dismissal, as the tardy oppositions was caused by mistake, inadvertence, surprise, or excusable neglect.”

Motion Denied

Scarsi responded in an Oct. 21 minute order:

“Because the Court finds that Plaintiffs failed to satisfy then meet and confer obligations in violation of Local Rule 7-3, the Court DENIES Plaintiffs’ Motion.”

Yesterday’s Ninth Circuit opinion says:

“The case had been pending only three months and had been assigned to the district judge for only ten days when it was dismissed. The one-week delay in filing the response did not meaningfully implicate either the public’s interest in expeditious litigation or the court’s management of its docket….Nor is there evidence of prejudice to defendants, who promptly replied to the late filing. The public policy of favoring disposition of cases on the merits ‘counsels strongly against dismissal.’…Finally, the district court did not consider less drastic alternatives.”

The case is Wheeler v. County of Orange, 20-56143.


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