Sandra Espinoza v. ALASKA AIR GROUP, INC. And ALASKA AIRLINES

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDRA ESPINOZA,
Plaintiff - Appellant,
And
DAVID PERRY,
Plaintiff,
v.
ALASKA AIR GROUP, INC. And
ALASKA AIRLINES,
Defendants - Appellees.
No. 12-55801
D.C. No. 2:11-cv-01271-MMM-MAN
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted December 3, 2013
Pasadena, California
Before: D.W. NELSON, WARDLAW, and RAWLINSON, Circuit Judges.
FILED
JAN 07 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Sandra Espinoza (Espinoza) appeals from the district court’s denial of her
motion, pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure (FRCP),
to set aside the dismissal of her lawsuit against Appellees Alaska Air Group, Inc.
and Alaska Airlines (collectively Alaska Airlines).
We review a district court’s decision to deny a motion under Rule 60(b) for
abuse of discretion. See Lal v. State of Cal., 610 F.3d 518, 523 (9th Cir. 2010).
In determining if counsel’s conduct constituted excusable neglect under Rule
60(b), the district court considered the factors set forth in Pioneer Investment
Services Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993), as applied to
Rule 60(b) by Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir. 1997).
The district court must consider “the danger of prejudice to the [non-movant], 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.” Pioneer, 507 U.S. at
395 (citation and footnote reference omitted).
Alaska Airlines will not suffer prejudice if the dismissal is set aside because,
as Alaska Airlines conceded at oral argument, it had already interviewed
employees who witnessed the underlying incident. Conversely, Espinoza “would
suffer the ‘ultimate’ prejudice absent relief because the statute of limitations on
[her] claim has run.” Lemoge v. United States, 587 F.3d 1188, 1196 (9th Cir.
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2009). In addition, the record does not reflect that Espinoza or her counsel acted in
bad faith, and the district court did not consider less drastic sanctions. See Leon v.
IDX Sys. Corp., 464 F.3d 951, 958, 960 (9th Cir. 2006).
When compared to the neglect we excused in Pincay v. Andrews, 389 F.3d
853 (9th Cir. 2004) (en banc), we conclude that similar relief is warranted in this
case. Moreover, counsel adequately explained the reasons for the six-month delay,
which was not unreasonable under the circumstances. Accordingly, we REVERSE
the district court’s denial of Espinoza’s motion for relief pursuant to FRCP 60(b),
and REMAND for further proceedings consistent with this disposition.
REVERSED and REMANDED.
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