                                                                           FILED
                           NOT FOR PUBLICATION                             MAR 11 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


WILLIAM RADCLIFFE, III,                          No. 12-55088

              Plaintiff - Appellant,             D.C. No. 5:11-cv-00945-ODW-
                                                 DTB
  v.

JPMORGAN CHASE BANK NA and                       MEMORANDUM*
PROFESSIONAL RECOVERY
SERVICES, INC.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    Otis D. Wright II, District Judge, Presiding

                             Submitted March 5, 2014**
                                Pasadena, California

Before: BYBEE and IKUTA, Circuit Judges, and ZILLY, Senior District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Thomas S. Zilly, Senior District Judge for the U.S.
District Court for the Western District of Washington, sitting by designation.
      William Radcliffe appeals the district court’s denial of his motion for relief

from judgment under Federal Rule of Civil Procedure 60(b)(1). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The district court did not abuse its discretion in denying Radcliffe’s motion

for relief from final judgment on the ground of excusable neglect. We reject

Radcliffe’s argument that the district court failed to analyze the reason for the

delay, the third factor set forth in Pioneer Investment Services Co. v. Brunswick

Associates Ltd. Partnership, 507 U.S. 380, 385 (1993), and Briones v. Riviera

Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997). The district court cited each of

the four factors set forth in these cases and stated that Radcliffe’s “failure to

comply with the rules of this Court on several occasions renders Pioneer factors

three and four heavily in Defendants’ favor.” Nor was the district court’s analysis

of the remaining Pioneer-Briones factors “illogical, implausible, or without

support in inferences that may be drawn from the facts in the record.” United

States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc). Counsel’s

repeated failure to comply with the local rules supported the district court’s

discretionary determination.

      AFFIRMED.




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                                                                               FILED
                                                                               MAR 11 2014

                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

William Radcliffe III v. JP Morgan Chase Bank, N.A., Professional Recovery
Services, Inc., et al., No.12-55088

IKUTA, J., dissenting:

      Because the district court failed to discuss one of the applicable factors set

forth in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership,

507 U.S. 380, 385 (1993), and Briones v. Riviera Hotel & Casino, 116 F.3d 379,

381 (9th Cir. 1997), and committed legal error in its analysis of another, I

respectfully dissent.

      Although Radcliffe violated the local rules by failing to file his amended

complaint manually, the district court gave him an opportunity to file his complaint

by August 22, 2011. It was Radcliffe’s failure to comply with that deadline—not

his initial failure to follow the local rules—that led to the dismissal. Radcliffe

presented a colorable reason for his failure to meet the August 22 deadline: he

placed the complaint in the mail, but it was never delivered. The district court

failed to mention this reason and therefore abused its discretion. Lemoge v. United

States, 587 F.3d 1188, 1193 (9th Cir. 2009); Bateman v. U.S. Postal Serv., 231

F.3d 1220, 1224 (9th Cir. 2000).

      The district court also committed legal error in its analysis of the prejudice

                                           1
prong by stating that defendants would suffer prejudice because “if relief from

judgment is granted, Defendants will have to continue defending the allegations

that are potentially meritless.” But we have held that a defendant’s obligation to

continue litigating a case is not prejudicial. See Ahanchian v. Xenon Pictures, Inc.,

624 F.3d 1253, 1262 (9th Cir. 2010); Bateman, 231 F.3d at 1224–25.

      Given these legal errors, I would reverse and remand for the district court to

reevaluate Radcliffe’s motion under the correct legal standard.




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