Case 1:12-cv LJO-SKO Document 10 Filed 04/16/13 Page 1 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION

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1 Case :-cv-0-ljo-sko Document Filed 0// Page of LAW OFFICES OF KENNETH M. FOLEY KENNETH M. FOLEY, ESQ. (State Bar #0) North Main Street, Suite No. MAILING ADDRESS: P. O. Box San Andreas, CA Telephone: () -l Facsimile: () - Attorneys for Plaintiffs MICHAEL NEMEE AND MICHELLE NEMEE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION IN RE MICHAEL NEMEE, et al., Debtors _ MICHAEL KENNETH NEMEE and MICHELLE SEOBHAN McKEE NEMEE, vs. Plaintiffs, BRENT HARRINGTON, SHAELYN STRATTAN, COUNTY OF CALAVERAS, AND ROBERT SELLMAN, et al., Respondents. No. CV F - LJO SKO NOTICE OF MOTION TO RECONSIDER AND SET ASIDE DISMISSAL OF ACTION [FRCP (b) and 0(b)] DATE: May, TIME: :0 a.m. DEPT: Courtroom 00 Tulare Street Fresno CA JUDGE: Lawrence J. O Neill TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Plaintiffs, MICHAEL KENNETH NEMEE and MICHELLE SEOBHAN McKEE NEMEE, by and through their counsel, KENNETH M. FOLEY, will move the Court on May,, at :0 a.m. in Courtroom of the above entitled Court located at 00 Tulare Street, Fresno, California, for an order reconsidering and setting aside the dismissal of the action which occurred on April,. NOTICE OF MOTION TO RECONSIDER AND SET ASIDE DISMISSAL OF ACTION - -

2 Case :-cv-0-ljo-sko Document Filed 0// Page of This motion will be made on the grounds that circumstances involving Plaintiffs Counsel being out of State and on the East Coast because of a family emergency and a break down in Plaintiffs counsel s account resulted in Plaintiffs Counsel never seeing the Court s NOTICE OF INTENT TO DISMISS AND CLOSE ACTION until April,, as if more fully explained in the Declaration of Kenneth M. Foley attached hereto and being filed contemporaneously herewith. Plaintiffs base this application on this Notice of Motion, the Declaration of KENNETH M. FOLEY, the Points and Authorities being filed contemporaneously herewith, and all other evidence and argument to be presented. DATED: April, NOTICE OF MOTION TO RECONSIDER AND SET ASIDE DISMISSAL OF ACTION LAW OFFICES OF KENNETH M. FOLEY By_/s/ Kenneth M. Foley KENNETH M. FOLEY Attorney for Plaintiffs, MICHAEL NEMEE and MICHELLE NEMEE - -

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11 Case :-cv-0-ljo-sko Document - Filed 0// Page of LAW OFFICES OF KENNETH M. FOLEY KENNETH M. FOLEY, ESQ. (State Bar #0) North Main Street, Suite No. MAILING ADDRESS: P. O. Box San Andreas, CA Telephone: () -l Facsimile: () - Attorneys for Plaintiffs MICHAEL NEMEE AND MICHELLE NEMEE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION IN RE MICHAEL NEMEE, et al., Debtors _ MICHAEL KENNETH NEMEE and MICHELLE SEOBHAN McKEE NEMEE, Plaintiffs, No. CV F - LJO SKO DECLARATION OF MELISSA GIBSON vs. BRENT HARRINGTON, SHAELYN STRATTAN, COUNTY OF CALAVERAS, AND ROBERT SELLMAN,,. Respondents. I, MELISSA LYNN GIBSON, declare: DATE: May, TIME: :0 a.m. DEPT: Courtroom 00 Tulare Street Fresno CA JUDGE: Lawrence J. O Neill. I am an employee of The Law Office of KENNETH M. FOLEY.. I was out of the office from March, through March. Upon my arrival back to the office on March,, our new legal secretary informed me that we were having internet connection problems during my absence, making our office incapable of checking our ; and that the office had arranged for AT&T to come out to our location on April, for DECLARATION OF MELISSA GIBSON - -

12 Case :-cv-0-ljo-sko Document - Filed 0// Page of technical support and an update of internet service. Their st representative missed our appointment on the due to an back log in their schedule, and at that time our internet connection was completely offline, and wasn t restored until the next day, April, when the representative came to our office.. Because of the lack of consistency in our internet connection that made our office unable to check our ; I called our service provider to see if there was a way to download our s to an office computer for viewing without internet connection. I was able to perform this task, but as a result, the s disappeared from viewing on an internet browser connection. During this time, Mr. Foley was out of the office, visiting his father in New Jersey; because of his being out of the office he could only connect to the account via an internet browser, and he was unable to read any s received prior to March,.. Our office is under instructions not to open automatically generated s from the Court as in certain instances it only allows for free viewing once.. Due to the aforementioned facts, our office was unaware of the Court s deadline to comply with the orders from the Notice of Intent to Dismiss and Close Action and thus unable to comply with such. I declare under penalty of perjury that the foregoing is true and correct and that this Declaration is executed on April, at San Andreas, California. /s/ Melissa Lynn Gibson MELISSA LYNN GIBSON DECLARATION OF MELISSA GIBSON - -

13 Case :-cv-0-ljo-sko Document - Filed 0// Page of LAW OFFICES OF KENNETH M. FOLEY KENNETH M. FOLEY, ESQ. (State Bar #0) North Main Street, Suite No. MAILING ADDRESS: P. O. Box San Andreas, CA Telephone: () -l Facsimile: () - Attorneys for Plaintiffs, MICHAEL NEMEE AND MICHELLE NEMEE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION IN RE: MICHAEL NEMEE, et al., Debtors. _ MICHAEL KENNETH NEMEE and MICHELLE SEOBHAN McKEE NEMEE, vs. Plaintiffs, BRENT HARRINGTON, SHAELYN STRATTAN, COUNTY OF CALAVERAS, AND ROBERT SELLMAN, et al., Respondents. No. CV F - LJO SKO POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO RECONSIDER AND SET ASIDE DISMISSAL OF ACTION [FRCP 0(b)] DATE: May, TIME: :0 a.m. DEPT: Courtroom 00 Tulare Street Fresno, CA JUDGE: Lawrence J. O Neill STATUTORY LAW Federal Rule of Civil Procedure 0(b) states: (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: () mistake, inadvertence, surprise, or excusable neglect; () newly discovered evidence that, with reasonable diligence, could not have been POINTS AND AUTHORITIES IN SUPPORT OF NOTICE OF MOTION TO RECONSIDER AND SET ASIDE DISMISSAL OF ACTION - -

14 Case :-cv-0-ljo-sko Document - Filed 0// Page of discovered in time to move for a new trial under Rule (b); () fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; () the judgment is void; () the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or () any other reason that justifies relief. Federal Rule of Civil Procedure (e) states: (e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than days after the entry of the judgment. CASE LAW In Bateman v. U.S. Postal Service F.d, ( th Cir 00), the Court, concerning an issue of what constitutes excusable neglect within the meaning of Rule 0(b)() of the Federal Rules of Civil Procedure, the Court stated: Rule 0(b)() of civil procedure provides that a court may relieve a party or a party s legal representative from a final judgment on the basis of mistake, inadvertence, surprise, or excusable neglect. As discussed above, the Supreme Court held in Pioneer that excusable neglect covers negligence on the part of counsel. It then said that the determination of whether neglect is excusable is an equitable one that depends on at least four factors: () the danger of prejudice to the opposing party; () the length of the delay and its potential impact on the proceeding; () the reason for the delay; and () whether the movant acted in good faith. (See Pioneer 0 U.S. at, S.Ct..) In this case, Plaintiffs do not believe there was any POINTS AND AUTHORITIES IN SUPPORT OF NOTICE OF MOTION TO RECONSIDER AND SET ASIDE DISMISSAL OF ACTION - -

15 Case :-cv-0-ljo-sko Document - Filed 0// Page of prejudice to the opposing party, that the length of delay in these proceedings is short and has no potential impact on the proceedings which were in a holding pattern -- at least at that time it seemed the parties were waiting for a decision on the current appeal; the reason for the delay, which in this case was extremely short and Plaintiffs believe they have acted in good faith and certainly never intended any failure which would result in a dismissal of the case. The circumstances explaining the reason for the delay are also contained in the Declaration of MELISSA GIBSON, employee of the Law Offices of KENNETH M. FOLEY, filed in support of the Motion to Set Aside Dismissal of the Action. th In Falk v. Allen, Fed.d, ( Cir. ), the Court held that Rule 0(b) is remedial in nature and...must be liberally applied. In the context of default judgment, the Ninth Circuit has emphasized that judgments are appropriate only in extreme circumstances; a case should, whenever possible, be decided on the merits. CONCLUSION Plaintiffs realize that they failed to file a Status Report in a timely manner; however, given the stress and circumstances Plaintiffs counsel was dealing with the week of March th through April,, it is hoped the Court will allow the dismissal to be set aside and the Complaint reinstated. Plaintiffs are unaware, as stated above, of any prejudice to the Defendants. The length of the delay in Plaintiffs conduct is relatively short. The reason for the delay was a myriad of factors which are partially explained by the Declaration of POINTS AND AUTHORITIES IN SUPPORT OF NOTICE OF MOTION TO RECONSIDER AND SET ASIDE DISMISSAL OF ACTION - -

16 Case :-cv-0-ljo-sko Document - Filed 0// Page of MELISSA GIBSON, employee of the Law Offices of KENNETH M. FOLEY, which explained why Plaintiffs counsel was unable to see the Court which contained the Notice of Intent to Dismiss and Close Action. As was explained, there were internet connection problems which prevented use the internet and apparently, on th March when Ms. GIBSON returned to work, she was told of a way to download s, which she did. That prevented Plaintiffs counsel from being able to see the Court s containing the Notice of Intent to Dismiss and Close Action which was received by his office after he had left for New Jersey. DATED: April, LAW OFFICES OF KENNETH M. FOLEY By_/s/ Kenneth M. Foley KENNETH M. FOLEY Attorney for Plaintiffs, MICHAEL NEMEE and MICHELLE NEMEE POINTS AND AUTHORITIES IN SUPPORT OF NOTICE OF MOTION TO RECONSIDER AND SET ASIDE DISMISSAL OF ACTION - -

17 Case :-cv-0-ljo-sko Document - Filed 0// Page of LAW OFFICES OF KENNETH M. FOLEY KENNETH M. FOLEY, ESQ. (State Bar #0) North Main Street, Suite No. MAILING ADDRESS: P. O. Box San Andreas, CA Telephone: () -l Facsimile: () - Attorneys for Plaintiffs MICHAEL NEMEE AND MICHELLE NEMEE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION IN RE MICHAEL NEMEE, et al., Debtors _ MICHAEL KENNETH NEMEE and MICHELLE SEOBHAN McKEE NEMEE, vs. Plaintiffs, BRENT HARRINGTON, SHAELYN STRATTAN, COUNTY OF CALAVERAS, AND ROBERT SELLMAN, Respondents. No. CV F - LJO SKO PROOF OF SERVICE BY MAIL DATE: May, TIME: :0 a.m. DEPT: Courtroom 00 Tulare Street Fresno CA JUDGE: Lawrence J. O Neill I am over the age of years, residing or employed in the County of Calaveras, and not a party to the within action; my business address is North Main Street, Suite, P. O. Box, San Andreas, California,. On April,, I served the following documents: NOTICE OF MOTION TO RECONSIDER AND SET ASIDE DISMISSAL OF ACTION, DECLARATION OF KENNETH M. FOLEY IN SUPPORT OF MOTION TO RECONSIDER AND SET ASIDE DISMISSAL OF ACTION, DECLARATION OF MELISSA GIBSON, POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO RECONSIDER AND SET ASIDE DISMISSAL OF ACTION PROOF OF SERVICE BY MAIL - -

18 Case :-cv-0-ljo-sko Document - Filed 0// Page of addressed to: Attorney for Brent Harrington, Shaelyn Strattan, County of Calaveras, and Robert Sellman: McCORMICK BARSTOW SHEPPARD WAYTE & CARRUTH LLP ATTN: SCOTT M. REDDIE RIVER PARK PLACE EAST FRESNO CA -0 United States Trustee: OFFICE OF THE UNITED STATES TRUSTEE 00 TULARE STREET STE 0 FRESNO CA X (BY MAIL) Placing the envelope for collection and mailing on the date and at the place shown below following our ordinary business practices. I am readily familiar with the business practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. Executed on April,, at San Andreas, California. I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. /s/ Judy K. Hibbard JUDY K. HIBBARD PROOF OF SERVICE BY MAIL - -