Center for Biological Diversity v. U. S. Bureau of Land Management

Filing 42

ORDER that Pla's untimely Unopposed Motion to File a Motion for Attorney's Fees and Related Non-taxable Expenses Out-of-Time, doc. 38, is GRANTED. The Clerk is directed to file Pla's lodged Motion for Attorney's Fees and Related N on-taxable Expenses and Memorandum of Points and Authorities, doc. 39 40, nunc pro tunc to October 19, 2010. FURTHER ORDERED that BLM shall file its Response to Pla's Motion for Attorney's Fees and Related Non-taxable Expenses and Memorandum of Points and Authorities, doc. 39-40, on or before Friday, November 19, 2010 absent an extension upon a showing of good cause. Signed by Magistrate Judge Lawrence O Anderson on 11/1/10.(KMG)

Center for Biological Diversity v. U. S. Bureau of Land Management

Doc. 42

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Center for Biological Diversity, Plaintiff, vs. U. S. Bureau of Land Management, Defendant.

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No. CV-10-0303-PHX-LOA ORDER

This case arises on Plaintiff's untimely Unopposed Motion to File a Motion for Attorney's Fees and Related Non-taxable Expenses Out-of-Time, filed on October 19, 2010. (Doc. 38) Plaintiff's counsel acknowledges that her attorney's fees motion "was due on or before October 18, 2010 . . . [but she] submits that extraordinary circumstances prevented [her] ability to file [her] motion on or before October 18, 2010." (Id. at 1) Plaintiff's out-of-district counsel, Amy R. Atwood, represents that Defendant's counsel does not oppose this motion. (Id. at 2) I. Background On February 11, 2010, Plaintiff Center for Biological Diversity filed its Complaint, alleging Defendant Bureau of Land Management's ("BLM") failed to disclose certain records requested by Plaintiff pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq. (Doc. 1) Specifically, Plaintiff sought to compel BLM to disclose a significant number of records that relate to numerous uranium mines located on public lands

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near the Grand Canyon National Park. BLM allegedly disclosed only a few of these records prior to the lawsuit, refused to disclose to Plaintiff the remaining portion of the requested records, and failed to identify any basis for withholding them from Plaintiff under the FOIA. To remedy Defendant's alleged unlawful withholding of records, Plaintiff sought an order declaring that BLM violated the FOIA and immediately disclose all responsive records to Plaintiff. (Docs. 1, 18 at 5) The Complaint requested, among others, an award of Plaintiff's reasonable attorneys' fees and its costs. (Doc. at 10) After BLM was served with process and filed its Answer, the parties expressly consented in writing to magistrate-judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Docs. 13, 24) Plaintiff's counsel, practicing in Oregon and Idaho, were authorized to appear pro hac vice in this District Court. (Docs. 4, 14, 31-32) On March 3, 2010 and prior to the Rule 16 scheduling conference, Plaintiff filed its Motion for Summary Judgment. (Docs. 16-18) On July 26, 2010 after several extensions for BLM to respond to Plaintiff's Motion for Summary Judgment, the parties apparently settled all Plaintiff's FOIA claims. (Doc. 34) BLM requested that "the Court set the deadline for Plaintiff's Motion for Attorneys Fees and Costs for sixty (60) days after entry of the order []" vacating the scheduling conference and denying the summary judgment motion as moot. (Id.) On July 28, 2010, the Court granted BLM's request, denied Plaintiff's summary judgment motion as moot, and ordered Plaintiff to "file its Motion for Attorneys Fees and Costs within sixty (60) days of the filing of this Order" viz., by September 27, 2010. (Doc. 35) On September 20, 2010, Plaintiff's counsel requested a three-week extension to file her attorneys' fees motion to October 18, 2010 because she had been, and will be, traveling on work-related matters and would like more time "to explore whether the issue of fees and costs may be settled without the need for further litigation." (Doc. 36) Granting Plaintiff's unopposed request for more time, the Court ordered "Plaintiff's Motion for Attorney's Fees and Costs shall be filed on or before October 18, 2010 [but] there shall be no further extensions except upon a showing of extraordinary circumstances." (Doc. 37) (emphasis in original) -2-

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Plaintiff's Unopposed Motion to File a Motion for Attorney's Fees and Related Non-taxable Expenses Out-of-Time was filed on October 19, 2010, one day after the courtordered deadline, and claims that extraordinary circumstances exist to excuse the untimely fees' request. (Doc. 38) Counsel offers as extraordinary circumstances that by waiting until 9:00 p.m. the last night the fees' motion was due to be filed, "counsel realized that she did not have her log-in information for the Court's Electronic Case Filing ("ECF") website . . . because Plaintiff's counsel recently obtained a new work computer, and had inadvertently neglected to transfer her ECF long-in information from her old computer to the new one." (Id. at 1) Counsel's affidavit indicates she "finished preparing the motion and supporting documentation at approximately 9:00 p.m. Pacific time . . . [when she] realized that [she] had a problem with [her] ECF username and password and could not log in." (Id.; Exhibit 1, ¶ 3 at 1-2) In effort at mitigation, "counsel sent all of Plaintiff's filings to Defendant's counsel via electronic mail at approximately 9:20 p.m., with a message that explained the issue and described a proposed resolution." (Id. at 2) II. Extraordinary circumstances The Court's September 21, 2010 order did not define the phrase "extraordinary circumstances" in the context of failing to comply with a court-ordered deadline. Extraordinary circumstances has different meanings in different legal contexts. For example, under the Immigration and Nationality Act, an alien must file for asylum within one year of arriving in the United States unless the alien shows "extraordinary circumstances relating to the delay in filing." 8 U.S.C. § 1158(a)(2)(B), (D); Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). According to the applicable INA regulation, the terms "extraordinary circumstances" "refer to events or factors directly related to the failure to meet the one-year deadline. . . that the circumstances were not intentionally created by the alien through his or her own action or inaction, that those circumstances were directly related to the alien's failure to file the application within the one-year period, and that the delay was reasonable under the circumstances. . . ." 8 C.F.R. § 208.4(a)(5) (setting forth numerous examples including ineffective assistance of counsel); Wakkary, 558 F.3d at 1056; Mardones v. -3-

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McElroy, 197 F.3d 619, 624 (2nd Cir. 1999) ("`[E]xceptional circumstances' refers to exceptional circumstances (such as serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances) beyond the control of the alien.") (emphasis in original). However, in the context of an untimely filing of a petition of writ of habeas corpus, mere negligence or ineffectiveness of counsel is not an extraordinary circumstance to justify equitable tolling of the one-year statute of limitations under the Anti-Terrorism and Effective Death Penalty Act of 1996. Lawrence v. Florida, 549 U.S. 327, 336-337 (2007) ("Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel."); Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). In the context of a Rule 60(b)(6) motion to set aside a default judgment, a party may obtain relief if he demonstrates "extraordinary circumstances which prevented or rendered him unable to prosecute [his case]." Community Dental Services v. Tani, 282 F.3d 1164, 1173 (9th Cir. 2002) (quoting Martella v. Marine Cooks & Stewards Union, 448 F.2d 729, 730 (9th Cir. 1971) (per curiam); Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990) ("[r]elief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances."). "[R]elief under Rule 60(b)(6) should only be granted where the moving party is able to demonstrate "that circumstances beyond its control prevented timely action to protect its interests." Tani, 282 F.3d at 1173. In Tani, a divided court held that "[w]here, as here, an attorney engages in grossly negligent conduct resulting in [a default] judgment, the client merits relief under Rule 60(b)(6), and may not be held accountable for his attorney's misconduct." III. Discussion Because "exceptional circumstances" was not defined in the September 21, 2010 order and has different meanings in different contexts, the Court, in hindsight, should have either defined "exceptional circumstances" or have used the "good cause" standard set forth in Rule 6(b), Fed.R.Civ.P., to provide guidance to counsel with its concomitant case law providing more substantive meaning to "good cause" for a missed deadline. Briones v. -4-

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Riviera Hotel and Casino, 116 F.3d 379 (9th Cir. 1997). Rule 6(b) provides: b) Extending Time. (1) In General. 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. Rule 6(b), Fed.R.Civ.P. (emphasis added). In Briones, the Ninth Circuit held that a pro se plaintiff's opposition, 3 months late, to a motion to dismiss, might be due to excusable neglect and that relief would not be summarily denied and reversed the district court's denial of relief and remanded. The Briones court discussed a Supreme Court case which analyzed the circumstances under which missing a filing deadline counts as "excusable" or "inexcusable" neglect. 116 F.3d at 381 (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1993)). The Supreme Court in Pioneer analyzed a variety of statutory uses of the term "excusable neglect" in order to analogize a late filing in the bankruptcy context. It explained that "neglect" has its normal, expected meaning, i.e., negligence, carelessness, inadvertent mistake. The Supreme Court in Pioneer stated: Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute "excusable" neglect, it is clear that "excusable neglect" under Rule 6(b) is a somewhat "elastic concept" and is not limited strictly to omissions caused by circumstances beyond the control of the movant. * * * * * *

Because Congress has provided no other guideposts for determining what sorts of neglect will be considered "excusable," we conclude that the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include, as the Court of Appeals found, the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith. Id. at 391, 395 (footnotes omitted). -5-

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There is no evidence that Plaintiff's one-day delay in filing Plaintiff's motion was anything other than unintentional. Waiting until 9:00 p.m. to file a document due that day is inherently risky that something unforeseen may prevent a timely filing and it did. The one-day delay in filing the fees' motion was not prejudicial to BLM and, in fact, BLM has no objection to allowing the late filing. Plaintiff's counsel acted in good faith by emailing her fees' motion on the due date to BLM's counsel, mitigating any possible prejudice to BLM. Exercising its equitable discretion and regardless of what exceptional circumstances may mean in the context of the pending Motion, the Court will grant Plaintiff's untimely Motion. IT IS ORDERED that Plaintiff's untimely Unopposed Motion to File a Motion for Attorney's Fees and Related Non-taxable Expenses Out-of-Time, doc. 38, is GRANTED. The Clerk is directed to file Plaintiff's lodged Motion for Attorney's Fees and Related Non-taxable Expenses and Memorandum of Points and Authorities, doc. 39-40, nunc pro tunc to October 19, 2010. IT IS FURTHER ORDERED that BLM shall file its Response to Plaintiff's Motion for Attorney's Fees and Related Non-taxable Expenses and Memorandum of Points and Authorities, doc. 39-40, on or before Friday, November 19, 2010 absent an extension upon a showing of good cause.
DATED this 1st day of November, 2010.*

*Due to clerical error, this Order was not properly dropped in to the civil docket queue until November 4, 2010.

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