Jacobs et al v. Wheaton Van Lines Incorporated et al

Filing 72

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)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Albert L Jacobs, Jr., et al., Plaintiffs, 10 11 Wheaton Van Lines Incorporated, et al., 13 ORDER v. 12 No. CV-20-01752-PHX-DLR Defendants. 14 15 16 Before the Court is Defendants’ motion for leave to file an amended declaration 17 (Doc. 69), to which Plaintiffs have filed a response in opposition (Doc. 70). Defendants’ 18 motion is granted for the following reasons. 19 On March 2, 2021, the Court granted Defendants’ motion for attorneys’ fees and 20 costs incurred in defending against Plaintiffs’ sanctions motion. (Doc. 66.) On March 9, 21 2021, Plaintiffs filed a motion for reconsideration, which argues that the Court erred in 22 granting Defendants’ motion because Defendants’ fee affidavit lacks language required by 23 28 U.S.C. § 1746—specifically that the affiant makes the declaration under penalty of 24 perjury. (Doc. 67.) On March 18, 2021, Defendants filed a motion requesting leave to file 25 an amended declaration containing the inadvertently omitted language. (Doc. 69.) 26 The Court may, for good cause, grant a party leave to file a late amended declaration 27 that complies with § 1746 when the party’s untimeliness is due to excusable neglect. 28 Wilson v. GMAC Mortg. LLC, No. CV 11-00546-PHX-FJM, 2012 WL 780813, at * 3-4 1 (D. Ariz. Mar. 9, 2012). In determining whether neglect is excusable, the Court assesses 2 “all relevant circumstances surrounding the party’s omission” including (1) the danger of 3 prejudice to the opposing party, (2) the length of the delay and its potential impact on the 4 proceedings, (3) the reason for the delay, and (4) whether the movant acted in good faith. 5 Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993). Having 6 balanced the relevant factors, the Court concludes that Defendants’ neglect in failing to 7 submit a timely declaration containing the necessary § 1746 language is excusable. 8 First, Plaintiffs have no more than conclusorily asserted, without support, that they 9 will suffer prejudice if Defendants are permitted to file an amended declaration. To the 10 contrary, permitting Defendants to file an amended declaration identical to the current one, 11 apart from the § 1746 language, will not require any additional action on Plaintiffs’ part. 12 Second, allowing the amended filing will not cause undue delay. Defendants originally 13 filed Mr. Parker’s declaration on February 17, 2021. 14 declaration’s deficiency, Defendants sought leave to amend their filing approximately one 15 month later. Moreover, Defendants sought such leave before the response deadline to 16 Plaintiffs’ motion for reconsideration. Third, Defendants’ delay, stemming from the 17 original language omission, was due to inadvertence. Finally, Defendants have acted in 18 good faith. While Defendants were undoubtedly negligent and careless when preparing 19 their declaration in support of their motion for attorneys’ fees, no evidence suggests that 20 Defendants willfully removed the § 1746 language or that they intentionally delayed in 21 seeking leave to file an amended declaration. The Court will therefore permit Defendants 22 to file an amended declaration no later than April 5, 2021. 23 24 25 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. 26 27 28 Douglas L. Rayes United States District Judge -2-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?