Cristian Cervantes v. JANET A. NAPOLITANO, Secretary, States Department of Homeland Security (CBP

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRISTIAN CERVANTES,
Plaintiff - Appellant,
v.
JANET A. NAPOLITANO, Secretary,
States Department of Homeland Security
(CBP and Border Protection) and BILLY
WHITFORD, CBP Port Director at
Calexico,
Defendants - Appellees.
No. 14-55172
D.C. No. 3:12-cv-01045-JLS-JMA
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted February 4, 2016
Pasadena, California
Before: REINHARDT, PAEZ, and M. SMITH, Circuit Judges.
Cristian Cervantes appeals the district court’s order denying his application
for relief under Federal Rule of Civil Procedure 60. We reverse and remand with
FILED
FEB 12 2016
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.

-- 1 of 2 --

instructions.
1. The district court’s denial was based in part on finding “a slight danger of
prejudice” to defendants that “may result” from the delay attributable to
Cervantes’s neglect. This finding lacked “support in inferences that may be drawn
from the record.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th
Cir. 2010). The defendants did not oppose Cervantes’s application for relief, and
at oral argument before this court counsel for defendants could not identify any
actual prejudice arising from Cervantes’s neglect. “[T]he mere possibility of
prejudice from delay, which is inherent in every case, is insufficient to require
denial of a 60(b)(1) motion.” Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1225
(9th Cir. 2000) (quoting Hibernia Nat’l Bank v. Administracion Cent. Sociedad
Anonima, 776 F.2d 1277, 1280 (5th Cir. 1985)).
2. In light of the lack of prejudice, the district court’s finding of good faith, and
the reasonably prompt filing of the Rule 60(b) application, a proper exercise of
discretion required granting Cervantes’s application for relief. On remand, the
district court shall enter an order providing a reasonable period of time for
Cervantes to file a Second Amended Complaint.
REVERSED AND REMANDED WITH INSTRUCTIONS.
-2-

-- 2 of 2 --