Jacobs et al v. Wheaton Van Lines Incorporated et al
ORDER granting Defendants' 69 motion for leave to file an amended declaration. See attachment for details. Signed by Judge Douglas L Rayes on 3/31/2021. (CLB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Albert L Jacobs, Jr., et al.,
Wheaton Van Lines Incorporated, et al.,
Before the Court is Defendants’ motion for leave to file an amended declaration
(Doc. 69), to which Plaintiffs have filed a response in opposition (Doc. 70). Defendants’
motion is granted for the following reasons.
On March 2, 2021, the Court granted Defendants’ motion for attorneys’ fees and
costs incurred in defending against Plaintiffs’ sanctions motion. (Doc. 66.) On March 9,
2021, Plaintiffs filed a motion for reconsideration, which argues that the Court erred in
granting Defendants’ motion because Defendants’ fee affidavit lacks language required by
28 U.S.C. § 1746—specifically that the affiant makes the declaration under penalty of
perjury. (Doc. 67.) On March 18, 2021, Defendants filed a motion requesting leave to file
an amended declaration containing the inadvertently omitted language. (Doc. 69.)
The Court may, for good cause, grant a party leave to file a late amended declaration
that complies with § 1746 when the party’s untimeliness is due to excusable neglect.
Wilson v. GMAC Mortg. LLC, No. CV 11-00546-PHX-FJM, 2012 WL 780813, at * 3-4
(D. Ariz. Mar. 9, 2012). In determining whether neglect is excusable, the Court assesses
“all relevant circumstances surrounding the party’s omission” including (1) the danger of
prejudice to the opposing party, (2) the length of the delay and its potential impact on the
proceedings, (3) the reason for the delay, and (4) whether the movant acted in good faith.
Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993). Having
balanced the relevant factors, the Court concludes that Defendants’ neglect in failing to
submit a timely declaration containing the necessary § 1746 language is excusable.
First, Plaintiffs have no more than conclusorily asserted, without support, that they
will suffer prejudice if Defendants are permitted to file an amended declaration. To the
contrary, permitting Defendants to file an amended declaration identical to the current one,
apart from the § 1746 language, will not require any additional action on Plaintiffs’ part.
Second, allowing the amended filing will not cause undue delay. Defendants originally
filed Mr. Parker’s declaration on February 17, 2021.
declaration’s deficiency, Defendants sought leave to amend their filing approximately one
month later. Moreover, Defendants sought such leave before the response deadline to
Plaintiffs’ motion for reconsideration. Third, Defendants’ delay, stemming from the
original language omission, was due to inadvertence. Finally, Defendants have acted in
good faith. While Defendants were undoubtedly negligent and careless when preparing
their declaration in support of their motion for attorneys’ fees, no evidence suggests that
Defendants willfully removed the § 1746 language or that they intentionally delayed in
seeking leave to file an amended declaration. The Court will therefore permit Defendants
to file an amended declaration no later than April 5, 2021.
After being alerted to the
IT IS ORDERED that Defendants’ motion for leave to file an amended declaration
(Doc. 69) is GRANTED.
Dated this 31st day of March, 2021.
Douglas L. Rayes
United States District Judge
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