Allied Property And Casualty Insurance Company v. Beazer Homes Holdings Corp. et al, No. 2:2009cv00626 - Document 197 (D. Nev. 2013)

Court Description: ORDER Granting 195 objection and request for relief from the magistrates denial of their motion for leave to file motion after the dispositive motion deadline. Summary Judgment Motions due within 7 days. Signed by Judge James C. Mahan on 2/19/2013. (Copies have been distributed pursuant to the NEF - SLR)
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Allied Property And Casualty Insurance Company v. Beazer Homes Holdings Corp. et al Doc. 197 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 ALLIED PROPERTY AND CASUALTY INSURANCE COMPANY, a foreign corporation, individually and as subrogee for its insured Joseph M. Holohan, 7 8 9 10 2:09-CV-626 JCM (PAL) Plaintiff, 11 v. 12 BEAZER HOMES HOLDINGS CORP., et al., 13 14 Defendants. 15 16 ORDER 17 Presently before the court is defendant Beazer Homes Holdings Corp.’s objection and request 18 for relief from the magistrate judge’s denial of its motion for leave to file motions after the 19 dispositive motion deadline. (Doc. #195). Plaintiff has not responded. 20 I. Background 21 On November 14, 2012, defendant requested leave to re-file three motions for summary 22 judgment. (Doc. #193, 3-4). Previously, this court had declined to consider these motions on the 23 basis that the motions were filed two-and-a-half years after the dispositive motion deadline and 24 defendant had not asked for leave to file after the expired deadline. (Doc. #189, 2:1-3). 25 The magistrate judge denied the November 14 request, declaring that defendant failed to 26 show the necessary excusable neglect in order to obtain relief for the late filing of motions. (Doc. 27 #194, 3:17-19). The magistrate judge cited the “strong public policy” supporting the “timely 28 James C. Mahan U.S. District Judge 1 resolution of cases on their merits.” (Doc. #194, 3:1-2). Further, the magistrate stated that a case 2 management order “is not a frivolous piece of paper, idly entered, which can be cavalierly 3 disregarded by counsel without peril.” (Doc. #194, 3:11-14) (citing Johnson v. Mammoth 4 Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992). 5 II. Legal Standard 6 Fed.R.Civ.P. 72(a) allows a district judge to set aside or modify any part of a magistrate 7 judge’s order in regards to a nondispositive matter that is “clearly erroneous or . . . contrary to law.” 8 See also L.R. IB 3-1(a); 28 U.S.C. § 636(b)(1)(A). 9 “A finding is clearly erroneous when although there is evidence to support it, the reviewing 10 body on the entire evidence is left with the definite and firm conviction that a mistake has been 11 committed.” United States v. Ressam, 593 F.3d 1095, 1118 (9th Cir. 2010) (quotation omitted). “An 12 order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of 13 procedure.” Global Advanced Metals USA, Inc. v. Kemet Blue Powder Corp., 3:11-CV-00793-RCJ, 14 2012 WL 3884939, at *3 (D. Nev. Sept. 6, 2012). 15 III. Discussion 16 Here, defendant asks this court to evaluate the magistrate judge’s ruling and allow it leave 17 to file three separate motions for summary judgment long after the deadline for filing dispositive 18 motions. (Doc. #195). It raises four objections. First, the magistrate judge’s belief that defense 19 counsel had been inactive was unsupported. (Doc. #195, 3:9-10). Second, the magistrate judge’s 20 order disregarded the fact that the dispositive motions defendant wishes to re-file became relevant 21 only after the dispositive motion deadline. (Doc. #195, 3:19-21). Third, addressing these issues in 22 post-trial motions would be unfair to the parties. (Doc. #195, 3:21-22). Last, that the magistrate 23 judge’s order discounted the overall context of the motions.1 (Doc. #195, 4:4-5). 24 ... 25 26 27 28 James C. Mahan U.S. District Judge 1 Defendant was willing to permit a trial continuance as requested by plaintiff based on plaintiff’s agreement that these three motions for summary judgment would be resolved prior to the trial. (Doc. #195, 4:6-8). Defendant and plaintiff agreed and stipulated that these pre-trial rulings would benefit both parties by fine tuning the issues and presentations for trial. (Doc. #195, 4:8-11). -2- 1 Initially, defendant has failed to file this motion for reconsideration within the time 2 constraints of local rule IB 3-1(a).2 The rule clearly sets a time limit of 14 days to challenge a 3 magistrate judge’s ruling. The magistrate judge’s order was filed on November 19, 2012. (Doc. 4 #194). The objection and request for relief based on that order, and before the court here, was filed 5 on December 6, 2012. (Doc. #195). Regardless, the court will turn to the merits. 6 A. The Pioneer Excusable Neglect Balancing Test 7 Fed.R.Civ.P. 6(b)(1)(B) allows a court to extend a deadline after that deadline’s expiration 8 when the moving party can show it failed to act because of excusable neglect. See also L.R. 6-1. 9 Excusable neglect is an equitable decision taking into account all relevant surrounding circumstances 10 of the party’s omission including at least four factors: “(1) the danger of prejudice to the opposing 11 party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the 12 delay; and (4) whether the movant acted in good faith.” Bateman v. U.S. Postal Service, 231 F.3d 13 1220, 23-24 (9th Cir. 2000); see Pioneer Investment Services Co. v. Brunswick Associates Limited 14 Partnership, 507 U.S. 380, 395 (1993) (created the four part equitable test for determining excusable 15 neglect outlined above); see also Committee for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 825 16 (9th Cir. 1996) (applied Pioneer’s excusable neglect test to Fed.R.Civ.P. 6(b)); see also Briones v. 17 Rivera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) (applied Pioneer’s excusable neglect 18 equitable test to Fed.R.Civ.P. 60(b)’s excusable neglect exception). 19 1. Prejudice to Opposing Party 20 Defendant claims that there is no danger of prejudice against plaintiff if the court were 21 to grant their motion. (Doc. #195, 17:16-17). Ordinarily this would not be true in regards to 22 dispositive motions. However, since plaintiff stipulated to allow more time in order for these 23 motions to be resolved and did not oppose defendant’s motion (doc. #191, 2:14-18), there is no 24 threat of prejudice to the opposing party. Accordingly, the first factor of Pioneer’s equitable remedy 25 26 27 28 James C. Mahan U.S. District Judge 2 Local rule IB 3.1(a) requires the objecting party to file and serve objections to the magistrate judge’s order within 14 days after being served with a copy. See also FED. R. CIV. P. 72(a). A party who fails to file a timely objection to a magistrate judge’s nondispositive ruling forfeits the right to challenge that ruling. Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 n. 1 (9th Cir. 1996). -3- 1 test weighs in favor of defendant. 2 2. Length of the Delay 3 Defendant argues that the magistrate judge wrongly blamed it for any delays, as all the delays 4 were attributable to both plaintiff and former co-defendant.3 (Doc. #195, 2:16-3:6). Defendant also 5 claims that there is “no threat of further delay of this matter because trial is already scheduled and 6 there is time for resolution of the requested motions prior to trial.” (Doc. #195, 14:7-9). 7 However, in the Ninth Circuit, length of the delay has primarily been evaluated as past delay 8 as opposed to potential future delays. See Bateman, 231 F.3d at 1225 (length of the delay analysis 9 focused on the one month delay of plaintiff in bringing motion to rescind the judgment); see Sayago 10 v. Jiminez, No. 03:09-cv-01295-HU, 2011 WL 5914279, at *1, *5 (D. Or. 2011) (length of the delay 11 analysis focused on the five months it took to seek relief); see generally Pioneer Inv. Services Co., 12 507 U.S. at 395-99 (concurred with lower court’s focus on the delay of the filing in regards to length 13 of the delay). Potential future threat of delay is still a consideration though. See Bateman, 231 F.3d 14 at 1225 (reasoning that the length of delay was minimal partly because there was no evidence that 15 the trial would have been postponed an inordinate amount of time) (emphasis added). 16 Here, as the magistrate judge thoroughly outlined in her order, the length of the delay is 17 substantial. (See doc. #194). The original deadline for filing dispositive motions was November 19, 18 2009. (Doc. #194, 1:16-17). At that time a thirty-day extension was granted. (Doc. #194, 1:18-19). 19 That was over three years ago. On the other hand, the potential threat of future delay is minimal. 20 Consequently, this factor is neutral. 21 3. Reason for the Delay 22 To justify the length of the delay, defendant argues that the motions for summary judgment 23 concern issues that “arose and ripened significantly after the dispositive motion deadline.” (Doc. 24 #195, 3:19-20) (emphasis in original). Defendant claims that the issues did not arise until a year after 25 the deadline passed. (Doc. #195, 6:19-20). Defendant also references the more recent settlement by 26 co-defendant as grounds to warrant leave to re-file. (Doc. #195, 11:1-6). 27 28 James C. Mahan U.S. District Judge 3 Co-defendant was Chamberlain Group, Inc., which is now terminated. -4- 1 Here, defendant offers persuasive reasons justifying the length of the delay. Although the 2 Ninth Circuit has found other reasons for delay justified see e.g., Bateman, 231 F.3d (plaintiff’s 3 attorney missed a deadline due to a family emergency); see also Gravatt v. Paul Revere Life Ins. Co., 4 101 Fed. Appx. 194, 195-96 (9th Cir. 2004) (plaintiff’s attorney missed a deadline due to personal 5 medical issues), the court finds the instant circumstances equally compelling. Thus, this factor 6 weighs in defendant’s favor. 7 4. Whether the Movant Acted in Good Faith 8 As for the fourth factor, the court finds no bad faith on defendant’s part. See Bateman, 231 9 F.3d at 1225 (concluded that bad faith was not present since the errors resulted from negligence and 10 carelessness, not deviousness or willfulness). 11 B. Summary 12 Defendant has established excusable neglect for missing the dispositive motion deadline. 13 While not all factors weigh in defendant’s favor, two factors, particularly the reason for delay, weigh 14 decisively in its favor. Additionally, along with these four factors, to make a fully “equitable” 15 decision, the court looks to another factor referenced in the magistrate judge’s order. Pioneer, 507 16 U.S. at 395 (excusable neglect is an equitable decision which includes the four main factors, but also 17 all relevant circumstances). That factor referenced by the magistrate judge is the strong public policy 18 of resolving cases on their merits in a timely fashion (doc. #194, 3:1-2). The court believes granting 19 this motion will serve that purpose. 20 Also, the four-factor equitable test from Pioneer must be applied in determining excusable 21 neglect. Bateman, 231 F.3d at 1224 (Ninth Circuit overruled the lower court partly because they did 22 not utilize the four factor equitable test from Pioneer in their excusable neglect analysis). Here, the 23 magistrate judge did not utilize the four-factor equitable test from Pioneer in evaluating defendant’s 24 motion. 25 ... 26 ... 27 ... 28 James C. Mahan U.S. District Judge -5- 1 IV. Conclusion 2 Accordingly, 3 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant’s objection and 4 request for relief from the magistrate’s denial of their motion for leave to file motion after the 5 dispositive motion deadline (doc. #195) be, and the same hereby is, GRANTED. 6 Furthermore, 7 IT IS HEREBY ORDERED that defendant’s three motions for summary judgments be re- 8 9 filed with the court within seven (7) days of this order’s publication. DATED February 19, 2013. 10 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -6-