Peters v. Baca et al, No. 2:2018cv00893 - Document 31 (D. Nev. 2020)

Court Description: ORDER granting 30 Motion to Extend Dispositive Motions Deadline; Motions due by 1/11/2021. Signed by Magistrate Judge Nancy J. Koppe on 10/16/2020. (Copies have been distributed pursuant to the NEF - HAM)
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Peters v. Baca et al Doc. 31 Case 2:18-cv-00893-APG-NJK Document 30 Filed 10/15/20 Page 1 of 7 1 2 3 4 5 6 AARON D. FORD Attorney General ALEXANDER J. SMITH (Bar No. 15484C) Deputy Attorney General State of Nevada Office of the Attorney General 555 East Washington Avenue Suite 3900 Las Vegas, Nevada 89101 (702) 486-4070 (phone) (702) 486-3773 (fax) Email: ajsmith@ag.nv.gov 7 8 Attorneys for Defendants Isidro Baca, Andrei Antonov, and John Coleman 9 10 11 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF NEVADA 14 RICHARD W. PETERS, 15 Plaintiff, 16 v. 17 ISIDRO BACA, et al., 18 Case No. 2:18-cv-00893-APG-NJK ORDER GRANTING DEFENDANTS' DEFENDANTS’ UNOPPOSED UNOPPOSED MOTION TO EXTEND MOTION TO EXTEND DISPOSITIVE DISPOSITIVE MOTIONS DEADLINE MOTIONS DEADLINE ONLY TO ONLY TO JANUARY JANUARY 11, 11,2021 2021 (SECOND(SECOND REQUEST)REQUEST) Defendants. 19 20 Defendants, Isidro Baca, Andrei Antonov, and John Coleman (collectively NDOC 21 Employees), by and through counsel, Aaron D. Ford, Nevada Attorney General, and 22 Alexander J. Smith, Deputy Attorney General (DAG Smith), of the State of Nevada, Office 23 of the Attorney General, hereby move a second time to extend by ninety days the dispositive 24 motions deadline only to January 11, 2021. At 2:00 P.M. on October 14, 2020, counsel for 25 Defendants met and conferred via telephone with Plaintiff to discuss this second motion to 26 extend the deadline to file dispositive motions. Plaintiff stated that this motion is 27 unopposed. 28 /// 30 Page 1 of 7 Dockets.Justia.com Case 2:18-cv-00893-APG-NJK Document 30 Filed 10/15/20 Page 2 of 7 1 2 MEMORANDUM OF POINTS AND AUTHORITIES I. BACKGROUND 3 A July 14, 2020 order grants (ECF No. 25) Plaintiff Richard W. Peters’s (Peters) 4 second motion for an extension of time and extends the dispositive motions deadline to 5 October 12, 2020. Because new counsel for NDOC Employees was recently appointed to 6 this case, NDOC Employees respectfully request an extension of time of ninety days to file 7 dispositive motions; good cause and excusable neglect exists to extend the dispositive 8 motions deadline to January 11, 2021. 9 On October 12, 2020, Defendants moved (ECF No. 28) a first time to extend the 10 dispositive motions deadline for the reasons stated below. An October 13, 2020 order 11 (ECF. No. 28) denies the motion because counsel failed to meet and confer before moving 12 for an extension. 13 II. LAW AND ARGUMENT 14 A. 15 Rule 6(b)(1), Federal Rules of Civil Procedure, governs extensions of time and states: 16 Rule 6(b), Federal Rules of Civil Procedure When an act may or must be done within a specified time, the court may, for good cause, extend the time: (A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act because of excusable neglect. 17 18 19 20 After a deadline has passed, Rule 6 requires a showing of both “good cause” and 21 “excusable neglect.” Brosted v. Unum Life Ins. Co. of Am., 421 F.3d 459, 464 (7th Cir. 2009). 22 Under Rule 6, good cause is not a rigorous or high standard, and courts have construed the 23 test broadly. Ahanchion v. Kenan Pictures, 624 F.3d 1253 (9th Cir. 2010). Excusable neglect 24 requires “a demonstration of good faith . . . and some reasonable basis for noncompliance 25 within the specified period of time.” Petrocelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1312 26 (3rd Cir. 1995). Whether neglect is excusable, so as to allow an extension of time, is an 27 equitable determination. Hawks v. J.P. Morgan Chase Bank, 591 F.3d 1043, 1048 (8th Cir. 28 /// 30 Page 2 of 7 Case 2:18-cv-00893-APG-NJK Document 30 Filed 10/15/20 Page 3 of 7 1 2010) (determination as to what sort of neglect is considered excusable is an equitable one, 2 taking account of all relevant circumstances surrounding a party’s omission). 3 In adjudicating excusable neglect, a court must take into account all relevant 4 circumstances, including (1) the danger of prejudice to the opposing party; (2) the length of 5 the delay and its potential impact on judicial proceedings; (3) the reason for the delay, 6 including whether it was within the reasonable control of the moving party; and (4) whether 7 the moving party acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. 8 P’ship, 507 U.S. 380, 395 (1993). 9 Rule 6(b) “[is] to be liberally construed to effectuate the general purpose of seeing 10 that cases are tried on the merits.” Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983); Wong 11 v. Regents of the Univ. of Calif., 410 F.3d 1052, 1060 (9th Cir. 2005) (“Of course, courts 12 should not mindlessly enforce deadlines.”) The excusable neglect doctrine exists to prevent 13 a victory by default. Newgen, LLC. v. Safe Cig, LLC, 840 F.3d 606, 616 (9th Cir. 2016) 14 (observing that it is “the general rule that default judgments are ordinarily disfavored). An 15 action should be decided on its merits and not on technicality. Rodriguez v. Village Green 16 Realty, LLC, 788 F.3d 31, 47 (2d. Cir. 2015) (citing Cargill, Inc. v. Sears Petroleum & 17 Transp. Corp., 334 F. Supp. 2d 197, 247 (NDNY 2014) and observing that there is a strong 18 preference for resolving disputes on the merits). See generally 1 Moore’s Federal Practice, 19 §6.06[3] (Matthew Bender 3d Ed.). 20 B. 21 LR IA 6-1 requires that a motion to extend time must state the reasons for the 22 extension requested and will not be granted if requested after the expiration of the specified 23 period unless the movant demonstrates that the failure to file the motion before the 24 deadline expired resulted because of excusable neglect. LR 26-3 requires that a motion to 25 extend any date set by the discovery plan, scheduling order, or other order must, as well as 26 satisfying the requirements of LR IA 6-1, demonstrate good cause for the extension, and 27 such a motion filed after the expiration of the deadline will not be granted unless the 28 movant demonstrates that the failure to act resulted from excusable neglect. 30 Local Rules IA 6-1 and 26-3 Page 3 of 7 Case 2:18-cv-00893-APG-NJK Document 30 Filed 10/15/20 Page 4 of 7 1 Finally, LR 26-3 lists four factors that are considered upon adjudication of a motion 2 to extend a discovery deadline or to reopen discovery: (a) a statement specifying the 3 discovery completed; (b) a specific description of the discovery that remains to be completed; 4 (c) the reasons why the deadline was not satisfied or the remaining discovery was not 5 completed within the time limits set by the discovery plan; and (d) a proposed schedule for 6 completing all remaining discovery. 7 C. 8 Good Cause and Excusable Neglect Exist, Thus an Order Should Grant NDOC Employees’ Motion for an Extension of the Dispositive Motions Deadline 9 Here, good cause exists for extending the dispositive motions deadline by ninety days 10 from October 12, 2020, to January 11, 2021. NDOC Employees intend to move for summary 11 judgment and will raise a qualified immunity defense and argue that no constitutional 12 violations occurred. By extending the deadline from October 12, 2020, Peters is under no 13 danger of prejudice, and the delay is short (counsel understands that the Office of the 14 Attorney General should have moved for an extension of time more than twenty-one days 15 before the dispositive motion deadline is due, but for reasons outlined below, this did not 16 happen)—counsel for NDOC Employees, Deputy Attorney General Alexander J. Smith 17 (DAG Smith), apologizes for moving a first time on the deadline date and for moving a 18 second time several days after the deadline but reassures the court that Defendants act in 19 the utmost good faith and that the extension sought will not impact negatively on judicial 20 proceedings.1 21 DAG Smith started with the Nevada Attorney General’s Office approximately a 22 month ago and was only recently admitted to the Federal District Court. Upon 23 commencement of his employment, DAG Smith became counsel of record for the defense in 24 approximately forty actions and has worked assiduously and expeditiously to review each 25 26 27 28 30 1 Defendants have always acted in good faith and moved (ECF No. 28) for an extension before the expiration of the deadline; while counsel for Defendants concedes that he should have attempted to meet and confer with Plaintiff before the date of the dispositive motions deadline, he did state in the motion that he made a good faith effort to meet and confer with Peters that same day and that he would attempt again to arrange something later in the week and supplement that motion with the results of the meet and confer. (ECF No. 28 at 2) Page 4 of 7 Case 2:18-cv-00893-APG-NJK Document 30 Filed 10/15/20 Page 5 of 7 1 case file. Only very recently, because of a previous calendar oversight that has since been 2 rectified, it transpired that the deadline to file dispositive motions was rapidly 3 approaching. DAG Smith moved (ECF No. 28) on the deadline date for an extension, but 4 an order (ECF No. 29) denied the motion without prejudice because of a failure to meet and 5 confer. DAG Smith hereby re-files that motion, which now incorporates an examination of 6 the excusable neglect standard because the second motion for an extension is filed several 7 days after the dispositive motions deadline. 8 Also, the previous attorney for NDOC Employees transitioned to his new role during 9 this time. Bearing in mind the numerous technological difficulties caused by the State of 10 Nevada moving to working from home because of the COVID-19 crisis, DAG Smith is 11 working diligently to defend this action. Soon after DAG Smith became aware of the 12 pending deadline dispositive motions deadline, he has worked tirelessly and in good faith 13 to review the docket in this action and to draft this and Defendants’ previous motion. In 14 sum, DAG Smith needs additional time in order to adequately brief the court for summary 15 judgment. 16 D. 17 The four factors contained within LR 26-3—(a) a statement specifying the discovery 18 completed; (b) a specific description of the discovery that remains to be completed; (c) the 19 reasons why the deadline was not satisfied or the remaining discovery was not completed 20 within the time limits set by the discovery plan; and (d) a proposed schedule for completing 21 all remaining discovery—are satisfied. NDOC Employees have completed discovery in this 22 action, and no further discovery is needed. The reasons why the deadline was not adhered 23 to are succinctly and thoroughly elaborated on at length in the preceding paragraphs. No The Four Factors Contained Within LR 26-3 Are Satisfied2 24 25 26 27 28 30 2 LR 26-3 lists four factors that are considered. Arguably, these apply only when a party moves for an extension to extend a discovery deadline or to reopen discovery; here, NDOC Employees neither move to extend a discovery deadline nor move to reopen discovery, but because a July 14, 2020 order (ECF No. 25) amends the April 13, 2020 Scheduling Order (Doc. 20), grants Peters’ second motion (ECF No. 25) for an extension of time, and moves the dispositive motions deadline to October 12, 2020, out of an abundance of caution, the factors contained within LR 26-3 are addressed in case the court decides that the four-factor requirement contained within that rule applies in this instance. Page 5 of 7 Case 2:18-cv-00893-APG-NJK Document 30 Filed 10/15/20 Page 6 of 7 1 discovery remains, but NDOC Employees move to amend the Scheduling Order to extend 2 the dispositive motions deadline from October 12, 2020, to January 11, 2021. 3 E. 4 As outlined above, at 2:00 P.M. on October 14, 2020, counsel for Defendants met and 5 conferred via telephone with Plaintiff to discuss this second motion to extend the deadline 6 to file dispositive motions. Plaintiff stated that this motion is unopposed. (See Declaration 7 of Counsel for the Defendants: Exhibit A) 8 III. Meet and Confer CONCLUSION 9 NDOC Employees demonstrate good cause to extend the dispositive motions 10 deadline to January 11, 2021, and demonstrate excusable neglect for moving to extend the 11 dispositive motions deadline after the deadline itself. Plaintiff does not oppose this motion. 12 Due to the nature of summary judgment and the time and complexity involved in 13 adequately briefing the court, and because the Ninth Circuit and other appellate courts 14 prefer to see that cases are tried on the merits and not on a technicality, NDOC Employees 15 respectfully request an extension of time from October 12, 2020, to January 11, 2021, to 16 file dispositive motions. 17 DATED this 15th day of October, 2020. 18 AARON D. FORD Attorney General 19 By: /s/ Alexander J. Smith ALEXANDER J. SMITH (Bar No. 15484C) Deputy Attorney General 20 21 Attorneys for Defendants 22 23 IT IS SO ORDERED. 24 Dated: October 16, 2020 25 26 ___________________________________ UNITED STATES MAGISTRATE JUDGE 27 28 30 Page 6 of 7