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(yl) (Entered: 11/23/2020)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/147813117/","id":147813117,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/7679677/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/152579107/","id":152579107,"tags":[],"absolute_url":"/docket/7679677/129/jeffery-r-werner-v-evolve-media-llc/","date_created":"2020-11-23T12:03:55.346654-08:00","date_modified":"2023-11-02T20:16:48.671800-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"129","attachment_number":null,"pacer_doc_id":"031034382102","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"USM-285 Service of non-complaint documents - Executed","acms_document_guid":""}],"date_created":"2020-11-23T12:03:55.332852-08:00","date_modified":"2023-11-02T20:16:48.661716-07:00","date_filed":"2020-11-09","time_filed":null,"entry_number":129,"recap_sequence_number":"2020-11-09.001","pacer_sequence_number":370,"description":"PROCESS RECEIPT AND RETURN (USM-285). The notice of levy, etc. was served on returned executed upon Bank of America on 11/8/20. Remarks: n/a. (See document for further details) (yl) (Entered: 11/23/2020)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/146826965/","id":146826965,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/7679677/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/151574602/","id":151574602,"tags":[],"absolute_url":"/docket/7679677/128/jeffery-r-werner-v-evolve-media-llc/","date_created":"2020-11-12T14:31:26.772210-08:00","date_modified":"2023-11-02T20:16:48.694738-07:00","sha1":"2bea3731475f93d5d5ce024a9fd92ed2aa3ee82b","page_count":9,"file_size":74898,"filepath_local":"recap/gov.uscourts.cacd.719970/gov.uscourts.cacd.719970.128.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cacd.719970/gov.uscourts.cacd.719970.128.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 1 of 9 Page ID #:1611\n\n\n\n\n                                    UNITED STATES DISTRICT COURT\n                                   CENTRAL DISTRICT OF CALIFORNIA\n                                     CIVIL MINUTES \u2013 GENERAL\n\n   Case No.      LACV 18-07188-VAP-SKx                                Date November 10, 2020\n   Title Jeffrey R. Werner v. Evolve Media, LLC, et al.\n\n\n\n   Present: The Honorable      VIRGINIA A. PHILLIPS, UNITED STATES DISTRICT JUDGE\n\n\n                 Christine Chung                                       Not Reported\n                  Deputy Clerk                                         Court Reporter\n\n\n       Attorney(s) Present for Plaintiff(s):                Attorney(s) Present for Defendant(s):\n                  None Present                                         None Present\n\n\n   Proceedings:      MINUTE ORDER DENYING MOTION FOR RELIEF FROM JUDGMENTS AND\n                     ORDERS [115] (IN CHAMBERS)\n\n\n\n          The Court has received and considered Defendants Evolve Media, LLC, Craveonline\n  LLC, and Totallyher Media LLC\u2019s (\u201cDefendants\u201d) \u201cMotion for Relief from Judgments and\n  Orders\u201d (\u201cMotion\u201d), filed on October 19, 2020. The Court finds the Motion appropriate for\n  resolution without oral argument pursuant to Local Rule 7-15 and hereby VACATES the hearing\n  set on November 16, 2020 at 2:00 p.m. Having considered the papers filed in support of, and in\n  opposition to, the Motion, the Court DENIES the Motion for the following reasons.\n\n  I.      Background\n          On August 16, 2018, Plaintiff Jeffery Werner (\u201cPlaintiff\u201d) filed a Complaint against\n  Defendants for damages and injunctive relief from copyright infringement. After engaging in\n  settlement negotiations, on August 30, 2019, Plaintiff filed a First Amended Complaint (\u201cFAC\u201d),\n  again alleging copyright infringement in violation of 17 U.S.C. \u00a7 101, et seq. On March 9, 2020,\n  Plaintiff filed a Motion for Summary Judgment, which Defendants did not oppose.\n\n         The Court granted summary judgment for Plaintiff on April 28, 2020, finding Defendants\n  committed four acts of copyright infringement of photographs owned by Plaintiff by authorizing\n  unlicensed display of the images on Defendants\u2019 websites. The four photographs are: (1) the\n  Giant George Image; (2) the Buffalo Whisperer Image; (3) the Mr. Stubbs Image; and (4) the\n  Wiley Coyote Image. The Court held Plaintiff was \u201centitled to pursue an award of statutory\n  damages and attorneys\u2019 fees in connection with the infringements of the Buffalo Whisperer,\n\n   Page 1 of 9                           CIVIL MINUTES \u2013 GENERAL           Initials of Deputy Clerk: cch\n\fCase 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 2 of 9 Page ID #:1612\n\n\n\n\n  Wiley Coyote, Mr. Stubbs, and Giant George Image.\u201d (See Dkt. No. 69). The Court entered a\n  Judgment in favor of Plaintiff and against Defendants.\n\n          On May 12, 2020, Plaintiff filed a motion for attorneys\u2019 fees, seeking $50,236 in fees and\n  $915.03 in litigation costs. On May 25, 2020, Plaintiff filed a motion for damages. Plaintiff\n  sought a total of $200,000 in statutory damages under the Copyright Act for Defendants\u2019\n  infringement of his four copyrighted images: $10,000 in statutory damages each for infringement\n  of the Wiley Coyote and Buffalo Whisperer Images, and $90,000 in statutory damages each for\n  infringement of the Mr. Stubbs and Giant George Images. Defendants did not oppose the motion\n  for attorneys\u2019 fees or the motion for damages. On June 22, 2020, the Court granted the motion\n  for attorneys\u2019 fees and the motion for damages.\n\n          The Court entered an Amended Judgment on July 30, 2020, which reflected the damages\n  and attorneys\u2019 fees awarded to Plaintiff.\n\n          Following entry of the Amended Judgment, Plaintiff has taken action to enforce and\n  collect upon it. On July 30, 2020, Plaintiff requested issuance of three writs of execution and the\n  Clerk of Court entered the three writs requested on July 31, 2020. On August 3, 2020, Plaintiff\n  requested an order granting a special appointment to serve process, which the Court granted on\n  August 5, 2020. The United States Marshals Service served bank levies on August 18, 2020 and\n  August 19, 2020 on Defendants\u2019 accounts at Comerica Bank. Those bank levies were returned\n  executed on September 18, 2020. On October 13, 2020, Plaintiff requested issuance of three\n  additional writs of execution, which the Clerk of Court issued on October 26, 2020.\n\n          Pertinent here, on January 21, 2020, Defendants filed requests to substitute their counsel\n  Jeffrey B. Valle with Ricardo Alan Chavez (hereinafter \u201cChavez\u201d). The Court granted the\n  substitution of counsel on February 6, 2020 and Chavez became counsel of record for\n  Defendants. On May 15, 2020, Chavez filed a notice of withdrawal of counsel. On May 18,\n  2020, the Clerk of Court identified several deficiencies with Chavez\u2019s notice and during a\n  telephonic pretrial conference on May 18, 2020, the Court advised Chavez that his notice was\n  defective procedurally and he must file the proper documents to be relieved as counsel. Chavez\n  refiled a notice of withdrawal of counsel on May 29, 2020. On June 1, 2020, the Clerk of Court\n  identified a deficiency in Chavez\u2019s filing. On August 17, 2020, Chavez filed a request for\n  approval of substitution or withdrawal of counsel. On August 18, 2020, the Clerk of Court\n  identified several deficiencies in Chavez\u2019s filing. On August 20, 2020, the Court ordered\n  stricken Chavez\u2019s August 17, 2020 filing and ordered him to correct the deficiencies identified\n  by the Clerk of Court. On August 28, 2020, Chavez filed a \u201crequest to withdraw of [sic]\n  attorney.\u201d On September 2, 2020, the Clerk of Court identified a deficiency in Chavez\u2019s filing,\n  namely that he failed to comply with Local Rule 5-4.4, and the Court ordered the filing stricken.\n  On September 21, 2020, Chavez filed a \u201crequest to withdraw attorney,\u201d which the Court granted\n  on September 24, 2020, approving the substitution of counsel Shanen Reid Prout for Defendant\n  Evolve Media, LLC. On October 2, 2020, Chavez filed a request to withdraw as counsel for\n  Defendants Craveonline, LLC and Totallyher Media, LLC, which the Court granted on October\n  5, 2020, approving the substitution of counsel Shanen Reid Prout.\n\n\n\n   Page 2 of 9                         CIVIL MINUTES \u2013 GENERAL              Initials of Deputy Clerk: cch\n\fCase 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 3 of 9 Page ID #:1613\n\n\n\n\n         Defendants filed the instant Motion on October 19, 2020. In support of the Motion,\n  Defendants filed the Declarations of Aaron Broder, Richard Chavez, and Shanen Prout. Plaintiff\n  filed Opposition to the Motion and the Declaration of Ryan E. Carreon on October 26, 2020.\n  Defendants filed a Reply and another Declaration of Aaron Broder on November 2, 2020.\n\n  II.      Discussion\n           In the Motion, Defendants move the Court to: set aside its orders granting Plaintiff\u2019s\n  motion for summary judgment, Plaintiff\u2019s motion for damages, and Plaintiff\u2019s motion for\n  attorneys\u2019 fees; set aside the Judgment and Amended Judgment; and recall and quash any writs of\n  execution issued in this action. (See Mot.) According to Defendants, their previous counsel\n  Chavez acted with gross and extreme carelessness and effectively abandoned them in this\n  litigation, rising to the level of excusable neglect and creating an extraordinary circumstance that\n  prevented them from defending themselves in this action. (Id.) Defendants argue the Court\n  should consider their evidence to rebut the amount of Plaintiff\u2019s damages, which Defendants\n  contend were calculated improperly and inflated grossly. (Id.; Reply at 18 (\u201cPlaintiff sought\n  entry of an amount of damages based on an incomplete record and grossly one-sided evidence,\n  while ignoring its own controverting [sic] evidence that it produced to Defendants in discovery.\u201d)\n  (emphasis in original).)\n\n         In Opposition, Plaintiff argues Defendants are not entitled to the relief requested because\n  they engaged in culpable conduct and they lack a meritorious defense. (See Opp\u2019n.)\n\n         Defendants bring the Motion pursuant to Federal Rules of Civil Procedure 60(b)(1) and\n  60(b)(6) (hereinafter \u201cRule 60(b)(1)\u201d and \u201cRule 60(b)(6)\u201d). The Court discusses each in turn.1\n\n\n\n\n        1\n          As Defendants point out in the Reply, Plaintiff\u2019s Opposition relies on caselaw\n        interpreting Rule 60(b)(1) and Rule 60(b)(6) in the context of entry of a default\n        judgment that a defendant later seeks to set aside. Although Defendants did not oppose\n        the motions for summary judgment, damages, and attorneys\u2019 fees, the Court did not\n        enter a default judgment against Defendants. Accordingly, much of the caselaw set\n        forth in Plaintiff\u2019s Opposition is distinguishable. The Court will not address, for\n        example, the three-factor test set forth in TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d\n        691, 696 (9th Cir. 2001) because that test for demonstrating excusable neglect pursuant\n        to Rule 60(b)(1) applies only in the context of a defendant moving to set aside a default\n        judgment. See Million (Far E.) Ltd. v. Lincoln Provisions Inc. USA, 581 F. App\u2019x 679,\n        681 (9th Cir. 2014) (\u201cTo show excusable neglect under Rule 60(b)(1), a court considers:\n        (a) whether the defendant has a meritorious defense; (b) whether the defendant engaged\n        in culpable conduct that led to the default; and (c) whether reopening the default\n        judgment would prejudice the plaintiff.\u201d). The Court discusses the applicable legal\n        standard below. As the legal tests to determine whether a default judgment and an\n        ordinary judgment should be set aside under Rule 60(b)(1) and Rule 60(b)(6) overlap\n        and interrelate, however, the Court will consider Plaintiff\u2019s arguments raised in the\n        Opposition as relevant to the analysis.\n\n   Page 3 of 9                           CIVIL MINUTES \u2013 GENERAL             Initials of Deputy Clerk: cch\n\fCase 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 4 of 9 Page ID #:1614\n\n\n\n\n         A.     Federal Rule of Civil Procedure 60(b)(1)\n         Rule 60(b)(1) authorizes a court to relieve a party from an order or judgment, inter alia,\n  where the judgment is a result of the party\u2019s mistake, inadvertence, surprise, or excusable\n  neglect. See Fed. R. Civ. P. 60(b)(1). A party seeking relief under Rule 60(b)(1) must file a\n  noticed motion within a \u201creasonable time\u201d not to exceed one year \u201cafter the entry of the\n  judgment.\u201d Fed. R. Civ. P. 60(c)(1).\n\n         \u201cTo determine whether a party\u2019s failure to meet a deadline constitutes \u2018excusable\n  neglect,\u2019 courts must apply a four-factor equitable test, examining: (1) the danger of prejudice to\n  the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the\n  reason for the delay; and (4) whether the movant acted in good faith.\u201d Pioneer Inv. Servs. Co. v.\n  Brunswick Assocs. Ltd. P\u2019ship, 507 U.S. 380, 395 (1993); Ahanchian v. Xenon Pictures, Inc.,\n  624 F.3d 1253, 1261 (9th Cir. 2010). \u201cThe proper application of Rule 60(b) strikes a balance\n  between serving the ends of justice and preserving the finality of judgments.\u201d Stewart v.\n  Wachowski, 574 F. Supp. 2d 1074, 1118 (C.D. Cal. 2005).\n\n                 1.      Danger of Prejudice to Opposing Party\n          \u201cTo be prejudicial, the setting aside of a judgment must result in greater harm than simply\n  delaying the resolution of the case.\u201d TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 701\n  (9th Cir. 2001), overruled on other grounds by Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141\n  (2001). \u201c[T]o be considered prejudicial, \u2018the delay must result in tangible harm such as loss of\n  evidence, increased difficulties of discovery, or greater opportunity for fraud or collusion.\u2019\u201d Id.\n  (quoting Thompson v. Am. Home Assur. Co., 95 F.3d 429, 433-34 (6th Cir. 1996)).\n\n          Defendants argue Plaintiff would suffer no harm if the Motion is granted. (Mot. at 12-\n  13.) According to Defendants, vacating the judgment in this case would restore the parties \u201cto an\n  even footing in the litigation\u201d and \u201c[r]esetting the present case for trial \u2013 at least on the issue of\n  damages and attorney\u2019s fees \u2013 does not pose a threat of serious delay that would result in the loss\n  of evidence, increased difficulties of discovery, or greater opportunity for fraud or collusion by\n  the parties.\u201d (Id. at 13.)\n\n          In Opposition, Plaintiff argues he would suffer undue prejudice if the Motion is granted.\n  (See Opp\u2019n at 13-14.) Plaintiff explains \u201c[i]f the relief sought is granted, [Plaintiff\u2019s] preparation\n  and filing of the summary judgment motion, damages and fee motions, and post judgment\n  collection efforts, will have been for naught.\u201d (Id. at 13.) Plaintiff has levied over $70,000 from\n  Defendants\u2019 bank accounts and \u201cwould be forced to return those monies with no assurance that\n  [Defendants] will be able to repay it if [Plaintiff] were to prevail in further proceedings.\u201d (Id.)\n  Plaintiff argues he has not sought an award of attorneys\u2019 fees and costs relating to the preparation\n  and filing of his damages motion, his judgment enforcement efforts, and the preparation and\n  filing of the Opposition to the instant Motion; he contends the Court, if inclined to grant the\n  Motion, should award Plaintiff his reasonable fees and costs incurred for these tasks to restore\n  the status quo. (Id. at 13-14.)\n\n         This is not a case where Plaintiff obtained a \u201cquick victory\u201d that can easily be reversed\n  without Plaintiff suffering undue prejudice. Cf. Bateman v. U.S. Postal Serv., 231 F.3d 1220,\n  1224-1225 (9th Cir. 2000) (\u201cThe prejudice to the Postal Service was minimal. It would have lost\n\n   Page 4 of 9                          CIVIL MINUTES \u2013 GENERAL               Initials of Deputy Clerk: cch\n\fCase 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 5 of 9 Page ID #:1615\n\n\n\n\n  a quick victory and, should it ultimately have lost the summary judgment motion on the merits,\n  would have had to reschedule the trial date. But such prejudice is insufficient to justify denial of\n  relief under Rule 60(b)(1).\u201d). The Court is persuaded by Plaintiff\u2019s argument that he has\n  expended considerable time and effort and incurred attorneys\u2019 fees and litigation costs to obtain\n  the Judgment and Amended Judgment entered in this case as well as to enforce the Amended\n  Judgment against Defendants. If the Court grants the Motion, Plaintiff would suffer \u201ctangible\n  harm,\u201d Thompson, 95 F.3d at 433-34, because he incurred those costs and fees and would be\n  forced to return the funds he levied from Defendants\u2019 bank accounts pursuant to the Amended\n  Judgment. Accordingly, the first Pioneer factor weighs against the finding of excusable neglect.\n\n                   2.     Length of Delay and Potential Impact on Proceedings\n           As stated supra, motions brought pursuant to Rule 60(b)(1) must be made within a\n  reasonable time not to exceed one year after entry of a judgment. Fed. R. Civ. P. 60(c). The\n  Ninth Circuit has instructed where a party allows the thirty-day appeal period to expire before\n  filing a Rule 60(b) motion, \u201cthe interest in finality must be given great weight.\u201d Ashford v.\n  Stewart, 657 F.2d 1053, 1055 (9th Cir. 1981).\n\n         In the Motion, Defendants argue they \u201chave asserted the present motion well within Rule\n  60(c) and what case law authorities have held to be a \u2018reasonable time.\u2019\u201d (Mot. at 13.)\n\n        As stated supra, Defendants filed the instant Motion on October 19, 2020; the original\n  Judgment was entered on April 28, 2020; and the Amended Judgment was entered on July 30,\n  2020. The Motion was filed six months after the Judgment was entered and three months after\n  the Amended Judgment was entered, within the one-year deadline imposed by Rule 60(c).\n\n           Defendants, however, filed the Motion five months after the appeal period had lapsed\n  regarding the original Judgment and two months after the appeal period had lapsed regarding the\n  Amended Judgment, pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A). When a party\n  makes a voluntary, conscious decision not to appeal a matter, such \u201ccalculated, deliberate choices\n  are not to be relieved from under [Rule 60(b)].\u201d Plotkin v. Pac. Tel. and Tel. Co., 688 F.2d 1291,\n  1293 (9th Cir. 1982) (citing Ackermann v. United States, 340 U.S. 193, 198 (1950)).\n  Accordingly, the interest in finality of the judgment in this case is strong in light of the six-month\n  or three-month delay in filing the Motion. See, e.g., Plotkin, 688 F.2d at 1293 n.2 (agreeing with\n  district court\u2019s conclusion that Rule 60(b) motion was not filed within a reasonable time where it\n  was filed 48 days after entry of the order and 18 days after the expiration of the time to appeal\n  the order).\n\n          As discussed supra, Plaintiff has begun to enforce the Amended Judgment and has\n  already levied a significant sum toward the satisfaction of Defendants\u2019 obligations pursuant to\n  that Amended Judgment. Defendants have brought the Motion months after Plaintiff initiated his\n  collection efforts. If the Court grants the Motion, the potential impact on the proceedings is\n  significant and to Plaintiff\u2019s detriment.\n\n          As this matter involves a period of delay that exceeds the appeal period and the Motion\n  was filed after Plaintiff\u2019s collection efforts had been underway for months, the Court concludes\n\n\n   Page 5 of 9                          CIVIL MINUTES \u2013 GENERAL              Initials of Deputy Clerk: cch\n\fCase 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 6 of 9 Page ID #:1616\n\n\n\n\n  the length of Defendants\u2019 delay in bringing the Motion is unreasonable. This Pioneer factor\n  weighs against the finding of excusable neglect.\n\n                3.      Reason for Delay\n         In evaluating the adequacy of the reason for the delay, the Court must take into account\n  whether the moving party was in reasonable control of the circumstances that caused the delay.\n  See Marx v. Loral Corp., 87 F.3d 1049, 1054 (9th Cir. 1996), overruled on other grounds by\n  Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012).\n\n          Defendants argue their \u201cpresent counsel of record spent several months investigating the\n  record in this case and collecting evidence to support this Motion\u201d and filed the Motion \u201cwithin a\n  couple of months after the time to appeal expired.\u201d (Mot. at 14.) Defendants\u2019 current counsel\n  Shanen Prout (\u201cProut\u201d) explains in his Declaration that after he was retained, he \u201cspent dozens of\n  hours conducting activities to assess the Motion and grounds for relief,\u201d including interviewing\n  Aaron Broder (hereinafter \u201cBroder\u201d), Defendants\u2019 Chief Executive Officer, and Chavez,\n  reviewing the Court\u2019s docket in this case, and conducting legal research. (Prout Decl. \u00b6 2.)\n  Defendants also claim, \u201cas corporate defendants, [they] could not represent themselves in the\n  action once [] Chavez abandoned them and they were thus unable to seek immediate relief from\n  this Court until they could retain new counsel.\u201d (Id.)\n\n          Based on the record before the Court, Prout was retained on June 4, 2020. (See Prout\n  Decl. \u00b6 2; Broder Decl. \u00b6 21.) Originally, Plaintiff\u2019s motion for attorneys\u2019 fees was set for\n  hearing on June 15, 2020 and his motion for damages was set for hearing on June 22, 2020.\n  Based on those hearing dates, pursuant to Local Rule 7-9, Defendants\u2019 opposition to the motion\n  for attorneys\u2019 fees was due to be filed by May 25, 2020 and their opposition to the motion for\n  damages was due to be filed by June 1, 2020. Prout would have been unable to file timely\n  opposition briefs to either motion, but he had been retained before the Court took both motions\n  off calendar and under submission on June 10, 2020 and June 17, 2020, respectively, and weeks\n  before the Court ruled on both motions on June 22, 2020. Moreover, Prout knew about the\n  Court\u2019s rulings on June 22, 2020 and sent copies of the Court\u2019s Orders to Defendants. (Broder\n  Decl. \u00b6 22.) Similarly, Prout had been retained for nearly two months when the Court entered the\n  Amended Judgment on July 30, 2020. Based on this record, the Court is not persuaded by\n  Defendants\u2019 argument that, because they were abandoned by Chavez, they could not file the\n  instant Motion until October 19, 2020.\n\n          Furthermore, while the Court agrees it takes some time for new counsel to become\n  familiar with the issues involved in a new case, the Court does not find Defendants\u2019 explanation\n  for the delay persuasive given the activity in this litigation between June 4, 2020, when Prout\n  was retained, and October 19, 2020, when the instant Motion was filed. The Court\n  acknowledges, as discussed supra, after several unsuccessful attempts, Chavez did not formally\n  withdraw from representing Defendants in this case until September 24, 2020 and October 5,\n  2020 and Prout substituted in as Defendants\u2019 counsel on those dates. The record is clear,\n  however, Prout was retained by Defendants on June 4, 2020 and began working on this litigation\n  on that date. Moreover, there is no evidence to show why Prout could not have prepared the\n  substitution of counsel form, as Chavez was unsuccessful in filing the required documents on\n  several occasions. Upon being retained, there was nothing preventing Prout from substituting in\n\n   Page 6 of 9                        CIVIL MINUTES \u2013 GENERAL              Initials of Deputy Clerk: cch\n\fCase 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 7 of 9 Page ID #:1617\n\n\n\n\n  as counsel for Defendants and immediately moving to set aside the Court\u2019s order on Plaintiff\u2019s\n  motion for summary judgment or seeking an extension of time to file opposition to Plaintiff\u2019s\n  motions for attorneys\u2019 fees and for damages.\n\n          Defendants attempt to pin the blame on Chavez for failing to oppose the motions for\n  summary judgment, for attorneys\u2019 fees, and for damages. Defendants\u2019 evidence, however,\n  demonstrates a breakdown in the attorney-client relationship between Chavez and Broder by at\n  latest May 14, 2020. (See Chavez Decl. \u00b6 10 (\u201cIn early May, Mr. Broder and I discussed my\n  desire to withdraw as counsel for Defendants in this action.\u201d), Exh. A; Broder Decl. \u00b6 14 (\u201cIn\n  April, Mr. Chavez and I discussed his potential withdrawal as counsel for Defendants in this\n  action.\u201d).) Moreover, according to Chavez, he did not oppose Plaintiff\u2019s motion for summary\n  judgment due to \u201cthe delay tactics that [Broder] had insisted upon\u201d and he did not file an ex parte\n  application or motion to continue the hearing on the motion for summary judgment \u201c[d]ue to the\n  strategy discussed between Mr. Broder and myself.\u201d (Chavez Decl. \u00b6\u00b6 7, 8.)\n\n         Based on this record, the Court concludes Defendants were in reasonable control of the\n  circumstances that caused the delay. Marx, 87 F.3d at 1054. Accordingly, this Pioneer factor\n  weighs against the finding of excusable neglect.\n\n                  4.      Whether Movant Acted in Good Faith\n          Defendants contend there is no evidence that they have acted in bad faith when they\n  failed to oppose Plaintiff\u2019s motions for summary judgment, for attorneys\u2019 fees, and for damages.\n  (See Mot. at 14-15.) According to Defendants, \u201c[t]he harm to Defendants from which it [sic]\n  seeks relief resulted from the gross negligence of Defendants\u2019 prior counsel, not from Defendants\n  [sic] acts or omissions or they or their counsel\u2019s deviousness or willfulness.\u201d (Id. at 15.)\n\n          In Opposition, Plaintiff argues Defendants acted willfully in failing to oppose the motions\n  for summary judgment, for attorneys\u2019 fees, and for damages. (See Opp\u2019n at 6-10.) Plaintiff\n  contends Defendants employed a \u201cwait and see\u201d approach in hopes \u201cthat the Court would award\n  minimal damages or set the case for trial.\u201d (Opp\u2019n at 9.) Plaintiff points out Broder states in his\n  Declaration he did not know Plaintiff had filed a motion for damages (see Broder Decl. \u00b6 18), yet\n  Chavez represents in his Declaration he discussed with Broder the possibility of retaining an\n  expert witness to oppose the motion for damages but Broder declined and said the expense\n  should be \u201cput off for trial\u201d (see Chavez Decl. \u00b6 14). Plaintiff argues Defendants\u2019 actions in\n  failing to oppose his three motions, then filing the instant Motion months later after Plaintiff\n  successfully levied funds from Defendants\u2019 bank accounts was \u201ccalculated and intentional,\u201d\n  pursuant to their strategy to delay this litigation. (Opp\u2019n at 9-10.)\n\n          While the Court is persuaded by Plaintiff\u2019s arguments that Defendants\u2019 delay may have\n  been more intentional than Defendants let on, there is no express evidence of deviousness or bad\n  faith on Defendants\u2019 behalf. The Court concludes this Pioneer factor weighs in favor of the\n  finding of excusable neglect. See Bateman, 231 F.3d at 1225.\n\n          On balance, three of the four Pioneer factors weigh against a finding of excusable neglect\n  pursuant to Rule 60(b)(1). Overall, the carelessness displayed by Chavez and Prout in failing to\n  file timely opposition to Plaintiff\u2019s three motions or move to set aside the Court\u2019s Amended\n\n   Page 7 of 9                         CIVIL MINUTES \u2013 GENERAL             Initials of Deputy Clerk: cch\n\fCase 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 8 of 9 Page ID #:1618\n\n\n\n\n  Judgment or orders granting Plaintiff\u2019s three motions does not constitute excusable neglect. See\n  Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1043-44 (9th Cir. 1992) (\u201cNeither ignorance\n  nor carelessness on the part of the litigant or his attorney provide grounds for relief\n  under Rule 60(b)(1)\u201d (internal quotation omitted)); see also, e.g., Pincay v. Andrews, 389 F.3d\n  853, 857 (9th Cir. 2004) (\u201c[I]nadvertence, ignorance of the rules, or mistakes construing the rules\n  do not usually constitute \u2018excusable\u2019 neglect\u201d); see also Allmerica Fin. Life Ins. and Annuity Co.\n  v. Llewellyn, 139 F.3d 664, 665-66 (9th Cir. 1997) (\u201ccounsel\u2019s failure to plead an affirmative\n  defense . . . does not provide a basis for equitable relief under Rule 60(b)(1)\u201d).\n\n          Defendants\u2019 arguments about Chavez\u2019s failures as their counsel amount to claims of\n  attorney malpractice. \u201cAs a general rule, parties are bound by the actions of their lawyers, and\n  alleged attorney malpractice does not usually provide a basis to set aside a judgment pursuant to\n  Rule 60(b)(1).\u201d Casey v. Albertson\u2019s Inc., 362 F.3d 1254, 1260 (9th Cir. 2004); see also Latshaw\n  v. Trainer Wortham & Co. Inc., 452 F.3d 1097, 1101 (9th Cir. 2006) (\u201cRule 60(b)(1) is not\n  intended to remedy the effects of a litigation decision that a party later comes to regret through\n  subsequently-gained knowledge that corrects the erroneous legal advice of counsel. . . . [P]arties\n  should be bound by and accountable for the deliberate actions of themselves and their chosen\n  counsel. This includes not only an innocent, albeit careless or negligent, attorney mistake, but\n  also intentional attorney misconduct. Such mistakes are more appropriately addressed through\n  malpractice claims.\u201d); Pioneer, 507 U.S. at 397 (\u201c[C]lients must be held accountable for the acts\n  and omissions of their attorneys.\u201d); Llewellyn, 139 F.3d at 666 (\u201c[A]ttorney error is insufficient\n  grounds for relief under . . . Rule 60(b)(1).\u201d); Williams v. Securitas Sec. Serv. USA, Inc., No. CV\n  12-1885-GHK (SSx), 2012 WL 12888104, at *3 (C.D. Cal. Aug. 14, 2012). The Court\n  acknowledges Defendants\u2019 predicament, as Chavez carried no attorney malpractice insurance and\n  is unable to \u201ccontribute a sum of money toward a settlement payment to Plaintiff that might\n  resolve this action . . . .\u201d (See Chavez Decl. \u00b6\u00b6 19-20.) Defendants have not met their burden,\n  however, to show Chavez engaged in excusable neglect, warranting relief pursuant to Rule\n  60(b)(1).\n\n          Accordingly, the Court DENIES Defendants\u2019 Motion brought pursuant to Rule 60(b)(1).\n\n          B.      Federal Rule of Civil Procedure 60(b)(6)\n          Alternatively, Defendants moves for relief pursuant to Rule 60(b)(6), which provides \u201cthe\n  court may relieve a party or a party\u2019s legal representative from a final judgment, order, or\n  proceeding, for . . . any other reason . . . justifying relief from the operation of the judgment.\u201d\n  Fed. R. Civ. P. 60(b)(6). Rule 60(b)(6) is a catchall provision used sparingly to prevent manifest\n  injustice only under \u201cextraordinary circumstances.\u201d United States v. Wash., 593 F.3d 790, 799-\n  800 (9th Cir. 2009). In order to merit relief pursuant to Rule 60(b)(6), the moving party must\n  demonstrate both injury and circumstances beyond his control that prevented him from\n  proceeding with the prosecution or defense of the action in a proper fashion. Cmty. Dental Serv.\n  v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002). A Rule 60(b)(6) motion must be based on grounds\n  other than those listed in the Rule\u2019s preceding clauses. Lafarge Conseils Et Etudes, S.A. v.\n  Kaiser Cement & Gypsum Corp., 791 F.2d 1334, 1338 (9th Cir. 1986) (Rule 60(b)(6) \u201cmust be\n  read as exclusive of preceding clauses.\u201d).\n\n\n\n   Page 8 of 9                         CIVIL MINUTES \u2013 GENERAL             Initials of Deputy Clerk: cch\n\fCase 2:18-cv-07188-VAP-SK Document 128 Filed 11/10/20 Page 9 of 9 Page ID #:1619\n\n\n\n\n          An attorney\u2019s gross negligence qualifies as an extraordinary circumstance warranting\n  relief pursuant to Rule 60(b)(6), but an attorney\u2019s ordinary negligence does not. Tani, 282 F.3d\n  at 1168-69; Lal v. Cal., 610 F.3d 518, 524-25 (9th Cir. 2010). In Tani, the attorney \u201cvirtually\n  abandoned his client by failing to proceed with his client\u2019s defenses despite court orders to do\n  so\u201d and deliberately deceived his client about what he was and was not doing. Tani, 282 F.3d at\n  1170-71. Moreover, the attorney lied to his client and told him the case was proceeding properly\n  when, in fact, a default judgment had been entered against the client. Id. at 1167. Likewise, in\n  Lal, the attorney failed to prosecute his client\u2019s case, deliberately misled his client, and expressly\n  lied to his client by saying the case was proceeding properly when, in fact, it had been dismissed.\n  Lal, 610 F.3d at 525-26.\n\n          Here, Defendants have failed to provide evidence demonstrating Chavez\u2019s gross\n  negligence. There is no evidence before the Court that shows Defendants were lied to or mislead\n  about the status of this case or were abandoned by Chavez. The record shows Chavez kept\n  Broder informed about the filing of the motion for summary judgment, the Court\u2019s order\n  granting the motion for summary judgment, the filing of the motion for attorneys\u2019 fees and,\n  although disputed by Broder, Chavez declares he discussed Plaintiff\u2019s motion for damages with\n  Broder. (See Chavez Decl. \u00b6\u00b6 6-9, 13, 14.) Defendants fail to demonstrate \u201cextraordinary\n  circumstances\u201d or articulate any other basis for relief pursuant to Rule 60(b)(6) other than those\n  they already asserted pursuant to Rule 60(b)(1). Accordingly, the Court DENIES Defendants\u2019\n  Motion brought pursuant to Rule 60(b)(6).\n\n  III.  Conclusion\n        For the foregoing reasons, the Court DENIES Defendants\u2019 Motion for Relief from\n  Judgments and Orders.\n\n          IT IS SO ORDERED.\n\n\n\n\n   Page 9 of 9                          CIVIL MINUTES \u2013 GENERAL               Initials of Deputy Clerk: cch\n\f","ocr_status":2,"date_upload":"2020-12-09T15:20:46.884344-08:00","document_number":"128","attachment_number":null,"pacer_doc_id":"031034312521","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order on Motion for Relief","acms_document_guid":""}],"date_created":"2020-11-12T14:31:26.761758-08:00","date_modified":"2023-11-02T20:16:48.683816-07:00","date_filed":"2020-11-10","time_filed":null,"entry_number":128,"recap_sequence_number":"2020-11-10.001","pacer_sequence_number":368,"description":"MINUTE ORDER DENYING MOTION FOR RELIEF FROM JUDGMENTS AND ORDERS 115 (IN CHAMBERS) by Judge Virginia A. Phillips: For the foregoing reasons, the Court DENIES Defendants' Motion for Relief from Judgments and Orders. IT IS SO ORDERED. (See document for further details) (yl) (Entered: 11/12/2020)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/146592476/","id":146592476,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/7679677/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/151334950/","id":151334950,"tags":[],"absolute_url":"/docket/7679677/127/jeffery-r-werner-v-evolve-media-llc/","date_created":"2020-11-09T10:02:46.537798-08:00","date_modified":"2023-11-02T20:16:48.649595-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"127","attachment_number":null,"pacer_doc_id":"031034285103","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order","acms_document_guid":""}],"date_created":"2020-11-09T10:02:46.526895-08:00","date_modified":"2023-11-02T20:16:48.639540-07:00","date_filed":"2020-11-06","time_filed":null,"entry_number":127,"recap_sequence_number":"2020-11-06.001","pacer_sequence_number":365,"description":"ORDER APPROVING SECOND JOINT STIPULATION TO PERMANENTLY SEAL DKT. NO. [122-3] by Judge Virginia A. Phillips. Court that the parties have stated proper grounds for permanently sealing the document filed in the above action as Dkt. No. 122-3, and GOOD CAUSE showingtherefor, the Court hereby APPROVES the parties Stipulation and ORDERS pursuantto the Court's powers under Local Rule 79-5.2, as follows: The Clerk of the Court is directed to immediately and permanently seal from public view the document filed in the above action on November 2, 2020 as Dkt. 122-3. (et) 126 . (Entered: 11/09/2020)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/146228877/","id":146228877,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/7679677/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/150964245/","id":150964245,"tags":[],"absolute_url":"/docket/7679677/126/jeffery-r-werner-v-evolve-media-llc/","date_created":"2020-11-04T18:03:18.294191-08:00","date_modified":"2023-11-02T20:16:48.563355-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"126","attachment_number":null,"pacer_doc_id":"031034264480","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Stipulation to Seal","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/377100256/","id":377100256,"tags":[],"absolute_url":"/docket/7679677/126/1/jeffery-r-werner-v-evolve-media-llc/","date_created":"2023-11-02T20:16:48.582878-07:00","date_modified":"2023-11-02T20:16:48.590398-07:00","sha1":"","page_count":2,"file_size":84623,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"126","attachment_number":1,"pacer_doc_id":"031034264481","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Proposed Order","acms_document_guid":""}],"date_created":"2020-11-04T18:03:18.287502-08:00","date_modified":"2023-11-02T20:16:48.552317-07:00","date_filed":"2020-11-04","time_filed":null,"entry_number":126,"recap_sequence_number":"2020-11-04.002","pacer_sequence_number":363,"description":"Second STIPULATION File Dkt. No. 122-3 Under Seal filed by defendants Craveonline, LLC, Evolve Media, LLC, Totallyher Media, LLC. (Attachments: # 1 Proposed Order)(Prout, Shanen) (Entered: 11/04/2020)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/146225012/","id":146225012,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/7679677/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/150960312/","id":150960312,"tags":[],"absolute_url":"/docket/7679677/125/jeffery-r-werner-v-evolve-media-llc/","date_created":"2020-11-04T16:33:13.602700-08:00","date_modified":"2023-11-02T20:16:48.539795-07:00","sha1":"6351a8fa0a9f076fd85b1afcb8f3150b54dcc52f","page_count":2,"file_size":27768,"filepath_local":"recap/gov.uscourts.cacd.719970/gov.uscourts.cacd.719970.125.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cacd.719970/gov.uscourts.cacd.719970.125.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 2:18-cv-07188-VAP-SK Document 125 Filed 11/04/20 Page 1 of 2 Page ID #:1602\n\n\n\n1 Shanen R. Prout (Cal.STate Bar No. 236137)\n2 shanen@srplawyer.com\n  LAW OFFICE OF SHANEN R. PROUT\n3\n     11400 W. Olympic Blvd., Suite 700                 NO SHOWING OF GOOD CAUSE\n4    Los Angeles, CA 90064\n5\n                                                                DENIED\n     Tel. (424) 208-6399                              BY ORDER OF THE COURT\n6 Fax: (310) 494-9382\n\n7 Attorneys for Defendants\n8 EVOLVE MEDIA, LLC, CRAVEONLINE LLC\n  and TOTALLYHER MEDIA, LLC\n9\n\n10                               UNITED STATES DISTRICT COURT\n11                CENTRAL DISTRICT OF CALIFORNIA\u2014WESTERN DIVISION\n12\n\n13    JEFFERY WERNER,                            Case No. 2:18-cv-07188-VAP-SK\n14                  Plaintiff,                   Hon. Virginia A. Phillips, Courtroom 8A\n15\n             v.                                  [PROPOSED] ORDER APPROVING\n16                                               JOINT STIPULATION TO\n17    EVOLVE MEDIA, LLC,                         PERMANENTLY SEAL DKT. NO.\n      CRAVEONLINE LLC and                        122-3\n18    TOTALLYHER MEDIA, LLC, and\n19    DOES 3 through 25,                         Hearing Date: November 16, 2020\n                                                 Time: 2:00 p.m.\n20                  Defendants.                  Courtroom: 8A\n21\n                                                 Case filed: August 16, 2018\n22                                               Case closed: April 28, 2020\n23\n\n24\n\n25\n            The Court has read and considered the Joint Stipulation to Permanently Seal Dkt.\n26\n     No. 122-3 of Plaintiff JEFFERY WERNER and Defendants Evolve Media, LLC,\n27\n\n28                                      -1-\n      [PROPOSED] ORDER APPROVING JOINT STIPULATION TO PERMANENTLY SEAL DKT.\n                                     NO. 122-3\n\fCase 2:18-cv-07188-VAP-SK Document 125 Filed 11/04/20 Page 2 of 2 Page ID #:1603\n\n\n\n1\n     CraveOnline LLC and TotallyHer Media, LLC. It appears to the satisfaction of the\n2\n     Court that the parties have stated proper grounds for permanently sealing the document\n3\n     filed in the above action as Dkt. No. 122-3. The Court hereby APPROVES the parties\u2019\n4\n     Stipulation and ORDERS pursuant to the Court\u2019s powers under Local Rule 79-5.2, as\n5\n     follows:\n6\n           The Clerk of the Court shall immediately and permanently seal the document\n7\n     filed in the above action on November 2, 2020 as Dkt. 122-3.\n8\n\n9\n     IT IS SO ORDERED.\n10                                       NO SHOWING OF GOOD CAUSE\n11                                                  DENIED\n12   Dated: November 4, 2020              BY  ORDER OF THE COURT\n                                           __________________________\n13                                         Hon. Virginia A. Phillips\n                                           Judge, United States District Court\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28                                      -2-\n      [PROPOSED] ORDER APPROVING JOINT STIPULATION TO PERMANENTLY SEAL DKT.\n                                     NO. 122-3\n\f","ocr_status":2,"date_upload":"2020-12-28T12:04:47.620761-08:00","document_number":"125","attachment_number":null,"pacer_doc_id":"031034263405","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order","acms_document_guid":""}],"date_created":"2020-11-04T16:33:13.592566-08:00","date_modified":"2023-11-02T20:16:48.529875-07:00","date_filed":"2020-11-04","time_filed":null,"entry_number":125,"recap_sequence_number":"2020-11-04.001","pacer_sequence_number":360,"description":"DENIED BY ORDER OF THE COURT by Judge Virginia A. Phillips, re Order Approving Joint Stipulation to Seal Dkt. 123 -3. 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