Cristian Cervantes v. Janet Napolitano | Court Opinion

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FILED NOT FOR PUBLICATION FEB 12 2016 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRISTIAN CERVANTES, No. 14-55172

Plaintiff - Appellant, D.C. No. 3:12-cv-01045-JLS-JMA

v. MEMORANDUM* JANET A. NAPOLITANO, Secretary, States Department of Homeland Security (CBP and Border Protection) and BILLY WHITFORD, CBP Port Director at Calexico,

Defendants - Appellees.

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

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 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.

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