                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 03 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CINDY KING FEINSTEIN,                            No. 10-55263

              Plaintiff - Appellant,             D.C. No. 3:08-CV-01174-W-
                                                 WMC
  v.
                                                 MEMORANDUM *
SERVICE SOLUTIONS
GROUP LLC et al,

              Defendant - Appellee.



                    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


        *
             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.
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


                                           2
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.


                                            3
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


                                           4
    REVERSED AND REMANDED FOR FURTHER PROCEEDINGS ON

THE MERITS.




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