Speiser, Krause & Madole P.C., D/B/A Speiser, Krause, Madole & Cook v. Rudy A. Ortiz Rudy A. Ortiz & Opinion Associates P.C.

Rudy A. Ortiz and Rudy A. Ortiz & Associates, P.C., a Virginia corporation, 1 appeal the district court’s order denying their motion to set aside the entry of default and to enlarge time to answer. We affirm.

BACKGROUND

Speiser, Krause & Madole, P.C., a California law firm, entered into an agreement with Ortiz, an attorney, for the purpose of dividing the legal representation responsibilities arising out of an airline crash case. After the case was concluded, a dispute arose between the attorneys regarding the division of the attorneys’ fees.

As a result, on January 7, 1999, Speiser Krause filed a complaint in the Superior Court of the State of California, County of Orange, and on April 28, 1999, Speiser *886 Krause sent a letter by certified mail to Ortiz indicating its intent to seek an entry of default in the event it did not receive a timely answer to the complaint.

Without having filed an answer in state court, Ortiz removed the case to the United States District Court for the Central District of California. Pursuant to Rule 81(c) of the Federal Rules of Civil Procedure, Ortiz was required to file an answer to the complaint by May 6,1999.

Ortiz, however, did not bother…

dissenting:

“The history of procedure is a series of attempts to solve the problems created by the preceding generation’s procedural reforms.” Judith Resnick, Precluding Appeals, 70 Cornell L.Rev. 603, 624 (1985).

I respectfully dissent. By applying the former per se rule, the District Court ignored the holdings of Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 , 113 S.Ct. 1489 , 123 L.Ed.2d 74 (1993) and its progeny, which call for an equitable analysis and broader interpretation of “neglect” under Fed.R.Civ.P. 60(b)(1). Similarly, by glossing over these developments, the majority implicitly reintroduces this former per se rule.

In Pioneer, creditors of a Chapter 11 debtor sought an extension of the bar date for filing late proofs of claim under Fed. R. Bankr.P. 9006(b). Pioneer, 507 U.S. at 382 , 113 S.Ct. 1489 . Rule 9006(b)(1) *888 grants the bankruptcy court the discretion to permit a late filing if the failure to comply with an earlier deadline resulted from “excusable neglect.” The bankruptcy court denied the motion and held that excusable neglect was limited to circumstances that were beyond the party’s reasonable control. The…

271 F.3d 884 (9th Cir. 2001) SPEISER, KRAUSE & MADOLE P.C., D/B/A SPEISER, KRAUSE, MADOLE & COOK, PLAINTIFF-APPELLEE, v. RUDY A. ORTIZ; RUDY A. ORTIZ & OPINION ASSOCIATES P.C., DEFENDANTS-APPELLANTS. No. 00-55195 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted September 12, 2001 * Filed November 21, 2001 Sidney C. Flores, Law Offices of Flores & Barrios, San Jose, California, for the defendants-appellants. John J. Veth, Speiser, Krause & Madole, P.C., Irvine, California, for the the plaintiff-appellee. Appeal from the United States District Court for the Central District of California; Consuelo B. Marshall, District Judge, Presiding. D.C. No. CV-99-04699-CBM Before: Ferguson, Fernandez, and McKeown, Circuit Judges. Fernandez, Circuit Judge: 1 Rudy A. Ortiz and Rudy A. Ortiz & Associates, P.C., a Virginia corporation, 1 appeal the district court's order denying their motion to set aside the entry of default and to enlarge time to answer. We affirm. BACKGROUND 2 Speiser, Krause & Madole, P.C., a California law firm, entered into an agreement with Ortiz, an attorney, for the purpose of dividing the legal representation responsibilities…