Commercial Litigation and Arbitration

Reconsideration under Rule 60(b)(1) — Circuit Split as to When Mistake, Inadvertence, Surprise or Excusable Neglect by the Court Itself Permits Relief from Judgment

Peak v. Ellis, 2011 Bankr. LEXIS 4322 (9th Cir. BAP Aug. 1, 2011):

Peaks contend the bankruptcy court abused its discretion in denying their Motion to Reconsider because it clearly erred by not considering less drastic sanctions, citing FRCP 60(b)(1). While the circuits are split, the Ninth Circuit permits FRCP 60(b)(1) relief from judgment because of mistake, inadvertence, surprise, or excusable neglect made by the court itself, only if clear legal error exists. See Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 440-41 & n.5 (9th Cir. 1982); contra Silk v. Sandoval, 435 F.2d 1266, 1267-68 (1st Cir. 1971).

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