An opposition to a motion to vacate judgment under Rule 60(b)(1) in United States District Court is the topic of this blog post. Any opposition to the motion should be served and filed at least seven (7) calendar days before the hearing unless a Local Rule or order of the Court states otherwise pursuant to Federal Rule of Civil Procedure 6(c)(2).
Parties served with a motion to vacate under Rule 60(b)(1) (“Rule 60”) should review the motion and all supporting documents closely to determine if grounds exist for an opposition. Common grounds for opposition are:
The motion is untimely in that it is brought later than one year after the entry of judgment or it is not brought within a reasonable time as required by Rule 60 which part that,
“ (c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”
The moving party unreasonably delayed in filing the motion.
Culpable conduct by the moving party resulted in the judgment.
No meritorious defenses to the judgment or lawsuit are presented.
The opposing party would be prejudiced if the judgment were set aside.
Numerous decisions of the Circuit Courts of Appeal including but not limited to, the Ninth Circuit Court of Appeals have stated that the moving party must show good cause for the default or judgment, diligence in seeking relief and a meritorious defense otherwise the Court has the discretion to deny the motion.
In a recent decision the Ninth Circuit Court of Appeal stated that Rule 60 does not provide relief for cases of ignorance, carelessness or inexcusable neglect. In another case the Ninth Circuit stated that even attorney negligence that would be considered malpractice does not usually warrant the granting of relief under Rule 60(b)(1), only conduct that is considered attorney misconduct.
Another Circuit Court of Appeal also stated that the ignorance or carelessness of an attorney does not warrant relief under Rule 60 and neither do deliberate litigation strategy and choices regarding evidence.
Attorneys or parties who would like to view a portion of a 10 page sample opposition to motion to vacate judgment under Rule 60(b)(1) containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can see below.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.
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Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.