Cindy King Feinstein v. Service Solutions Group LLC

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Henry E. Hudson, United States District Judge for the**
Eastern District of Virginia, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CINDY KING FEINSTEIN,
Plaintiff - Appellant,
v.
SERVICE SOLUTIONS
GROUP LLC et al,
Defendant - Appellee.
No. 10-55263
D.C. No. 3:08-CV-01174-W-
WMC
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted November 9, 2011
Pasadena, California
Before: SCHROEDER and REINHARDT, Circuit Judges, and HUDSON, District
Judge.**
Cindy King Feinstein appeals the district court’s order denying her motion
under Federal Rule of Civil Procedure 60(b) seeking to reopen her civil action for
FILED
JAN 03 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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wrongful termination and gender discrimination. We have jurisdiction pursuant to
28 U.S.C. § 1291. We review the district court’s denial of a Rule 60(b) motion for
an abuse of discretion. Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1100
(9th Cir. 2006). Therefore, we will reverse only if the district court applied the
incorrect legal rule, or applied the correct law in a manner that was illogical,
implausible, or without support from the record. Ahanchian v. Xenon Pictures,
Inc., 624 F.3d 1253, 1258 (9th Cir. 2010). Because the district court failed to
apply the correct legal rule in this case, we reverse and remand.
Following dismissal of Feinstein’s initial Complaint for failure to state a
plausible cause of action, the district court afforded her leave to file an amended
complaint by a designated date; however, she failed to do so. Eleven months after
the district court’s Order, Feinstein filed a Notice of Substitution of Attorney, and
through newly-engaged counsel, filed an Amended Motion to Re-Open Case and
Leave to File First Amended Complaint pursuant to Rule 60(b)(1), claiming
excusable neglect by previous counsel. According to Feinstein, she learned in May
2009 that her counsel missed the deadline to file an amended complaint and would
be unable to continue her representation because of physical disabilities. She then
sought and retained current counsel. Feinstein represents, and the district court did
not dispute, that her previous counsel suffered from multiple sclerosis and

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systematic lupus, requiring numerous hospitalizations during the pendency of her
suit.
To determine whether a party’s failure to meet a deadline constitutes
excusable neglect, courts must apply a four-factor equitable test, balancing “the
danger of prejudice to the [other party], the length of the delay and its potential
impact on judicial proceedings, the reason for the delay, . . . and whether the
movant acted in good faith.” Briones v. Riviera Hotel & Casino, 116 F.3d 379,
381 (9th Cir. 1997) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 395, 113 S. Ct. 1489, 1498 (1993)). The district court here
failed to engage in the requisite equitable analysis, apparently confining its
consideration solely to the length and reason for the delay to the exclusion of the
other factors, and thereby abused its discretion.
On close review, we find the factual record in the case to be sufficiently
developed to facilitate our application of the Briones/Pioneer framework. See
Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224 & n.3 (9th Cir. 2000).
Applying each factor to the record, we are convinced that the district court also
erred in concluding that Feinstein’s delay did not result from excusable neglect.
First, Service Solutions failed to cite any tangible prejudice to support its cursory
claim that it would encounter difficulties in locating documents and witnesses.

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TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 701 (9th Cir. 2001)
(“[M]erely being forced to litigate on the merits cannot be considered prejudicial
for purposes of lifting a default judgment.”). In contrast, Feinstein stands to
“endure the ultimate prejudice of being forever barred from pursuing [her] claims”
should we deny her appeal. Lemoge v. United States of America, 587 F.3d 1188,
1196 (9th Cir. 2009) (stating that prejudice to the moving party should also be
considered in any analysis of the first Pioneer/Briones factor).
Second, although Feinstein filed the instant motion eleven months after the
deadline for the amended complaint, she satisfied the one-year limitation set forth
in Rule 60(b)(1). Weighed in light of the severity of her then-counsel’s
uncontested health conditions, Feinstein has provided a plausible and reasonable
explanation for her delay. Finally, Service Solutions has failed to produce any
evidence in support of its bare allegation that Feinstein acted in bad faith. See
Bateman, 231 F.3d at 1225 (noting that negligence and carelessness do not amount
to bad faith).
Engaging in the equitable analysis overlooked by the district court, we are
convinced that the record evidences excusable neglect by Feinstein and her
counsel. Accordingly, the district court’s order denying Feinstein’s Rule 60(b)
motion is hereby

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REVERSED AND REMANDED FOR FURTHER PROCEEDINGS ON
THE MERITS.

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