United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
September 9, 2019, the court ordered Plaintiff to file an
amended complaint within 30 days or face dismissal of this
action. (Filing 7) On October 18, 2019, finding that
Plaintiff had not filed an amended complaint or taken any
other action in this matter, the court entered an order and a
judgment dismissing the action without prejudice. (Filings 8,
October 25, 2019, Plaintiff filed an “Objection to
October 18, 2019 Judgment, ” in which she “denies
receiving a ‘September 9, 2019' court order to file
an amended complaint withing 30 days. (Filing 10) The court
construes Plaintiff's filing either as a motion to alter
or amend judgment, filed pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure, or as a motion for relief
from judgment, filed pursuant to Rule 60(b).
court's docket sheet contains an entry showing that the
clerk of the court mailed a copy of the September 9, 2019
order to Plaintiff on that date. See Fed. R. Civ. P.
77(d)(1) (“Immediately after entering an order or
judgment, the clerk must serve notice of the entry, as
provided in Rule 5(b), on each party who is not in default
for failing to appear. The clerk must record the service on
the docket.”). Service of an order can be made under
Rule 5(b) by “mailing it to the person's last known
address-in which event service is complete upon
mailing.” Fed.R.Civ.P. 5(b)(2)(C). Service was
accomplished in this manner because Plaintiff is not a
registered user of the court's electronic case filing
system. See NEGenR 1.3(a)(2)(B) (“The clerk
mails paper copies of orders to parties who are not
registered users of the System.”). The court has no
record of the September 9, 2019 mailing being returned to the
clerk of the court as undeliverable. Notice by regular mail
is presumed to be delivered. Diaz v. Lynch, 824 F.3d
758, 760 (8th Cir. 2016).
59(e) motions serve the limited function of correcting
manifest errors of law or fact or to present newly discovered
evidence. United States v. Metro. St. Louis Sewer
Dist., 440 F.3d 930, 933 (8th Cir. 2006). Rule 60(b)
provides that a judgment may be set aside, inter
alia, for “mistake, inadvertence, surprise, or
excusable neglect” or for “any other reason that
justifies relief.” Fed.R.Civ.P. 60(b)(1), (6).
contention that she did not receive the court's mailing
is best analyzed as a claim of “excusable neglect,
” which is “an elastic concept that empowers
courts to provide relief where a party's failure to meet
a deadline is caused by inadvertence, mistake, or
carelessness, as well as by intervening circumstances beyond
the party's control.” Kurka v. Iowa City,
628 F.3d 953, 959 (8th Cir. 2010) (quotation marks and
citation omitted). To determine whether conduct is excusable,
courts consider several factors, including: (1) the danger of
prejudice to the non-moving party; (2) the length of the
delay and its potential impact on judicial proceedings; (3)
whether the movant acted in good faith; and (4) the reason
for the delay, including whether it was within the reasonable
control of the movant. Freeman v. Wyeth, 764 F.3d
806, 809 (8th Cir. 2014). The reason for the delay is a key
factor in the analysis, but the excusable neglect inquiry is
at bottom an equitable one, taking account of all relevant
circumstances surrounding the party's omission.
that Plaintiff's in forma pauperis complaint was
dismissed “without prejudice” on initial review
(prior to service of process), and that Plaintiff promptly
objected after receiving a copy of the court's judgment,
the court will accept Plaintiff's representation that she
did not receive a copy of the court's September 9, 2019
order, and will set aside the judgment. Plaintiff will be
given an additional 30 days to file an amended complaint that
states a claim upon which relief may be granted. If an
amended complaint is filed within 30 days, the court will
then conduct another initial review pursuant to 28 U.S.C.
§ 1915(e)(2). But if an amended complaint is not filed
within 30 days, this action may be dismissed without further
notice to Plaintiff.
1. Plaintiff's “Objection to October 18, 2019
Judgment” (Filing 10), treated as a motion filed
pursuant to Rule 59(e) or Rule 60(b), is granted.
2. The court's memorandum and order entered on October
18, 2019 (Filing 8) is withdrawn.
3. The court's judgment entered on October 18, 2019
(Filing 9) is set aside and vacated.
4. The clerk of the court shall not process Plaintiff's
notice of appeal (Filing 11).
5. The clerk of the court shall send Plaintiff another copy
of the court's memorandum and order entered on September
9, 2019 (Filing 7), along with a copy of this memorandum and
6. Plaintiff shall have 30 days in which to file an amended
complaint that states a claim upon which relief may be
granted. Failure to file an amended complaint within 30 days
will result in the court ...