Levy v. United States

Background

Norman Levy sued the United States for injuries he said he sustained while walking on the boardwalk at Ocean Beach on October 14, 2020. The case was filed on September 1, 2022. The court issued several case-management orders requiring Levy to file case-management statements. Levy missed three deadlines, although he later filed some of the required statements.

The court also determined that Levy had not properly served the United States. His counsel served the Civil Process Clerk for the Central District of California rather than the United States Attorney’s Office for the Northern District of California, where the case was pending. Levy also did not respond to an order requiring him to explain why the case should not be dismissed for failure to prosecute, and neither he nor his counsel appeared at the March 13, 2023 case-management conference.

Judge Kim recommended dismissal under Federal Rule of Civil Procedure 41(b). Levy did not object. On June 8, 2023, the court dismissed the action without prejudice for failure to prosecute and entered judgment in favor of the United States on June 9, 2023. Levy did not seek to change the judgment within the 28-day period for a motion under Rule 59(e).

Rule 60(b)(1) relief

Levy asked the court to reopen the case and vacate the dismissal and judgment under Rule 60(b)(1), which permits relief for mistake, inadvertence, surprise, or excusable neglect. The court rejected Levy’s claim of surprise because the order to show cause and the recommendation for dismissal had warned him that the case could be dismissed for his repeated failures to follow court orders.

The court also applied the four factors used to assess excusable neglect: prejudice to the United States, the length and effect of the delay, the reason for the delay and whether it was within Levy’s control, and good faith.

The court found that the prejudice factor favored Levy because the United States identified only delay, not harm affecting its ability to try the case or the proper resolution of the dispute. The court nevertheless found that the length of the delay and Levy’s reasons weighed against relief. Levy filed his motion about one month after dismissal, but he had known about the risk of dismissal for about four months. The court found his explanations inadequate: he attributed missed deadlines to calendaring errors, said he believed proper service would eliminate the order to show cause, and blamed a legal assistant for service errors. The court stated that these failures were within counsel’s reasonable control.

The court found no basis to conclude that Levy acted in bad faith, but said that good faith alone did not justify relief. It concluded that the delay and inadequate reasons outweighed the absence of serious prejudice and bad faith. The court therefore denied Levy’s Rule 60(b)(1) motion.

Rule 60(b)(6) relief

Levy alternatively sought relief under Rule 60(b)(6), which applies when extraordinary circumstances justify setting aside a judgment for reasons not covered by the rule’s other provisions. The court held that Levy had not identified extraordinary circumstances showing that he was faultless or that circumstances beyond his control prevented him from prosecuting the case. It therefore denied the Rule 60(b)(6) motion.

Merits and interests of justice

Levy argued that the case should be reopened so it could be decided on its actual merits. The court distinguished cases involving the reopening of default judgments. It stated that this case had been dismissed under Rule 41(b) for failure to prosecute and failure to comply with multiple court orders, and that the dismissal operated as an adjudication on the merits under that rule.

The court also rejected Levy’s description of the events as one minor error after new counsel entered the case. It found that no new counsel had been substituted, that the dismissal was based on multiple repeated errors, and that the asserted April 19 scheduling conference did not exist. The court concluded that reopening the case was not in the interests of justice.

Disposition

The court denied Levy’s motion to vacate the dismissal. The order disposed of Docket No. 24.