Franklin v. Hernandez et al, No. 2:2020cv00063 - Document 26 (D. Nev. 2021)

Court Description: ORDER granting 25 Motion to Extend Time; Motions due by 8/16/2021. Signed by Judge Richard F. Boulware, II on 7/15/2021. (Copies have been distributed pursuant to the NEF - HAM)
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Franklin v. Hernandez et al 1 2 3 4 5 6 7 8 Doc. 26 AARON D. FORD Attorney General Amy A. Porray (Bar. No. 9565) Deputy Attorney General State of Nevada Office of the Attorney General 555 E. Washington Ave., Ste. 3900 Las Vegas, Nevada 89101 (702) 486-0661 (phone) (702) 486-3773 (fax) Email: aporray@ag.nv.gov Attorneys for Defendant Diana Hernandez 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 JJEFFREY LYNN FRANKLIN, 12 Plaintiff, 13 v. 14 HERNANDEZ, et al., 15 Defendants. Case No. 2:20-CV-00063-RFB-DJA DEFENDANT’S MOTION TO EXTEND THE DEADLINE TO FILE MOTION FOR SUMMARY JUDGMENT (FIRST REQUEST) 16 17 Defendant, Diana Hernandez, by and through counsel, Aaron D. Ford, Nevada 18 Attorney General, and Amy A. Porray, Deputy Attorney General, of the State of Nevada, 19 Office of the Attorney General, request this Court extend the deadline to file the Motion for 20 Summary Judgment from July 14, 2021, to August 16, 2021. This is the first request. 21 I. INTRODUCTION 22 Defendant, Diana Hernandez, respectfully requests this Court grant this request to 23 extend the deadline to file the Motion for Summary Judgment. Good cause exists because 24 counsel has had a serious medical emergency that required her to take extended medical 25 leave and has affected all dates and deadlines in her cases. 26 /// 27 /// 28 /// 30 Page 1 of 5 Dockets.Justia.com 1 II. BACKGROUND 2 Plaintiff, Jeffrey Lynn Franklin sues Hernandez for alleged constitutional violations 3 occurring while he was lawfully incarcerated in the Nevada Department of Corrections. 4 ECF No. 10. Since filing suit, Franklin has been released from prison. ECF No. 7, 24. On 5 June 15, 2021, Hernandez served her Initial Disclosures. To date, Franklin has not done 6 disclosures nor propounded any discovery requests. Hernandez’s counsel was also 7 contacting various declarants in preparation of the motion for summary judgment. 8 Additionally, Hernandez’s counsel was scheduled for annual leave, beginning July 6, 2021, 9 and returning July 13, 2021. The instant motion for summary judgment would have been 10 completed prior to counsel’s leave, and then reviewed, edited and approved during her leave 11 and timely filed upon her return. 12 However, in the very late hours of Thursday, July 1, 2021/very early morning of 13 Friday, July 2, 2021 (counsel is unsure of the time), counsel suffered a serious medical 14 episode. See Declaration of Amy A. Porray. Counsel’s live-in partner took her to the nearest 15 hospital emergency room. Id. Following discharge, counsel was given instructions not to 16 return to work in any capacity until her follow up with medical specialists. Id. 17 Counsel was placed on emergency medical leave beginning Friday, July 2, 2021. The 18 end of the following week, counsel met with her medical specialist who ordered further 19 specialized testing and allowed for a subsequent return to work. Id. Counsel returned to 20 work on Monday, July 12, 2021. Id. Although, counsel is diligently working to get caught 21 up on all cases, she must remain cognizant of her provider’s treatment recommendations 22 and the limitations posed by her physical abilities. Id. As of now, counsel is not at full 23 working capacity. 24 25 Counsel does not have a current telephone number for Franklin or an email address and was not able to speak with him prior to the filing of the instant motion. 26 All of counsel’s cases, dates and deadlines have been affected. As a result, Defendant 27 respectfully requests that this Court grant her request for 30 days to file the Motion for 28 Summary Judgment. 30 Page 2 of 5 1 III. LEGAL ARGUMENT 2 District courts have inherent power to control their dockets. Hamilton Copper & 3 Steel Corp. v. Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir. 1990); Oliva v. Sullivan, 4 958 F.2d 272, 273 (9th Cir. 1992). Rule 6(b)(1), Federal Rules of Civil Procedure, governs 5 extensions of time: 6 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. 7 8 9 10 “The proper procedure, when additional time for any purpose is needed, is to present 11 to the Court a timely request for an extension before the time fixed has expired (i.e., a 12 request presented before the time then fixed for the purpose in question has expired).” 13 Canup v. Miss. Valley Barge Line Co., 31 F.R.D. 282, 283 (D. Pa. 1962). The Canup Court 14 explained that “the practicalities of life” (such as an attorney’s “conflicting professional 15 engagements” or personal commitments such as vacations, family activities, illnesses, or 16 death) often necessitate an enlargement of time to comply with a court deadline. Id. 17 Counsel’s unforeseeable medical emergency, which led to an extended medical 18 absence and a complete inability to work demonstrates good cause. Counsel has actively 19 and responsibly participated in the instant litigation. Counsel was on track to timely file 20 the instant motion for summary judgment. However, now all of counsel’s cases and their 21 accompanying dates and deadlines have been affected. 22 Franklin has been released from incarceration since the filing of the instant action. 23 He has not participated in discovery. Accordingly, a short continuance will not be 24 prejudicial to him. Counsel brings this motion in the very best of faith and not for the 25 purposes of delay. 26 IV. CONCLUSION 27 Hernandez’s motion for an extension of time to file a motion for summary judgment 28 should be granted due to counsel’s serious injury. Hernandez requests an extension from 30 Page 3 of 5 1 the current due date of July 14, 2021, to August 16, 2021. This motion is brought in good 2 faith and not for the purposes of delay. 3 DATED July 14, 2021. 4 AARON D. FORD Attorney General 5 By: /s/ Amy A. Porray Amy A. Porray (Bar. No. 9596) Deputy Attorney General Attorney for Defendant 6 7 8 9 10 11 IT IS SO ORDERED 13 _________________________________ RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 14 DATED: July 15, 2021 12 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 Page 4 of 5 1 CERTIFICATE OF SERVICE 2 I certify that I am an employee of the State of Nevada, Office of the Attorney General, 3 and that on July 14, 2021, I electronically filed the foregoing DEFENDANT’S MOTION 4 TO EXTEND THE DEADLINE TO FILE MOTION FOR SUMMARY JUDGMENT 5 (FIRST REQUEST) via this Court’s electronic filing system. Parties who are registered 6 with this Court’s electronic filing system will be served electronically. 7 8 Jeffrey Lynn Franklin 4414 E. Flamingo Road Las Vegas, Nevada 89121 9 10 11 12 /s/ Natasha D. Petty An employee of the Office of the Nevada Attorney General 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 Page 5 of 5 1 2 3 4 5 6 7 8 AARON D. FORD Attorney General AMY A. PORRAY (Bar No. 9596) Deputy Attorney General State of Nevada Office of the Attorney General 555 East Washington Ave., #3900 Las Vegas, Nevada 89101 (702) 486-3216 (phone) (702) 486-3773 (fax) Email: aporray@ag.nv.gov Attorneys for Defendant, Diana Hernandez 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 JJEFFREY LYNN FRANKLIN, 12 Case No. 2:20-CV-00063-RFB-DJA Plaintiff, 13 v. 14 HERNANDEZ, et al., 15 DECLARATION OF DEPUTY ATTORNEY GENERAL AMY A. PORRAY Defendants. 16 17 18 19 I, Amy A. Porray, hereby attest that the following statements to the best of my knowledge are true and correct. 1. I am employed as a Deputy Attorney General (DAG) in the Office of the 20 Nevada Attorney General (OAG). I am employed in the Public Safety Division, 21 Nevada Department of Corrections. 22 2. That I am competent to provide the instant Declaration. 23 3. I represent the Defendant, Diana Hernandez, in the instant action. 24 4. That I provide this Declaration in support of my request for an extension of time to file a motion for summary judgment. 25 26 5. That the due date to file a motion for summary judgment is July 14, 2021. 27 6. That I was scheduled for annual leave to commence on July 6, 2021, with a 28 30 return date of July 14, 2021. Page 1 of 2 1 7. 2 3 That in preparation for annual leave, prepared a litigation schedule to meet all dates and deadlines for her caseload while on annual leave. 8. That, due to the deadline in the instant case occurring on July 14, 2021, I 4 scheduled the litigation-preparation dates of July 1-5, 2021, for the drafting 5 and finalization of the instant motion. 6 9. 7 8 That I had also been working on the document preparation and contacting declarants for the instant motion prior to July 1, 2021. 10. 9 That very late Thursday night (July 1, 2021)/early Friday morning (July 2, 2021), I suffered an incredibly serious medical episode. I do not remember the 10 time. 11 11. That I went to the emergency room. 12 12. That my medical episode was so serious that, in addition to all other medically 13 related concerns, my live-in partner immediately cancelled our annual leave 14 vacation based on injury severity, medical direction, the necessity of follow up 15 visits with specialists and specialized testing. 16 13. That I was on medical leave from July 2—until July 12, 2021. 17 14. That I was not permitted to work during medical leave. 18 15. That I am still not able to work at full capacity. 19 16. That I have been doing my utmost diligence to comply with all cases, dates 20 and deadlines since returning to work. 21 17. 22 Pursuant to Title 28, United States Code, Section 1746, I declare under penalty of 23 24 25 26 27 28 30 That I bring this motion in good faith and not for the purposes of delay. perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed this 14th day of July, 2021. AARON D. FORD Attorney General By: /s/ Amy A. Porray Amy A. Porray (Bar No. 9596) Deputy Attorney General Page 2 of 2