Johnson v. Astrue

Filing 27

ORDER granting Plaintiff's 26 Second Motion for Extension of Time to File Opening Brief; Plaintiff shall file his opening breif by 7/18/12; if Plaintiff does not file his opening brief on or before 7/18/12, the Clerk is directed to dismiss this appeal without prejudice and further order of the Court. Signed by Magistrate Judge Lawrence O Anderson on 7/13/12.(REW)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 ) ) ) Plaintiff, ) ) vs. ) Michael J. Astrue, Commissioner of) ) Social Security, ) ) Defendant. ) Russell Johnson, CV-11-8150-PCT-LOA ORDER 15 This case arises on Plaintiff’s untimely second motion for an extension of time to file 16 his opening brief. (Doc. 26) Plaintiff’s counsel represents that Commissioner’s counsel has 17 no objection and “requests an extension of 6 days, until July 18, 2012, to file her Opening 18 Brief, due to our heavy workload at this time and incorrectly calendaring the due date.” (Id.) 19 This Social Security appeal was filed on September 21, 2011. (Doc. 1) The 20 September 27, 2011 scheduling order required Plaintiff to file an opening brief “[w]ithin 21 sixty (60) days from the filing of the answer and record.” (Doc. 6) On March 23, 2012, the 22 Commissioner filed a certified copy of the administrative transcript. (Doc. 23) On May 24, 23 2012, the Court granted Plaintiff a thirty day extension to file Plaintiff’s opening brief 24 because “Attorney Hansen, a sole practitioner with no regular staff, has four briefs due to the 25 Arizona Court of Appeals and the Arizona Industrial Commission.” Plaintiff was ordered 26 to file his opening brief on or before Friday, June 22, 2012. On July 12, 2012, three weeks 27 beyond the court-ordered deadline to file an opening brief, Plaintiff filed the pending 28 motion. 1 Plaintiff’s motion was neither timely filed nor does it demonstrate good cause to grant 2 the motion under Rule 6(b)(1)(A), Fed.R.Civ.P. It does, however, demonstrate counsel’s 3 excusable neglect pursuant to Rule 6(b)(1)(B). Excusable neglect is meant to be an “elastic 4 concept and is not limited strictly to omissions caused by circumstances beyond control of 5 the movant.” Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 391 6 (1993); see also Pincay v. Andrews, 389 F.3d 853, 854 (9th Cir. 2004) (the court found 7 excusable neglect where an attorney delegated calendar duties to a paralegal, who ultimately 8 misread the Federal Rules and calendared a deadline incorrectly.). 9 Although the Court is reluctant to grant Plaintiff’s request for another enlargement of 10 time in light of the age of this case, the deadline in the scheduling order, and the prior 11 extension given to Plaintiff, in the interests of resolving the issues raised in the Petition on 12 the merits, the Commissioner having no objection, and the Commissioner will suffer no 13 prejudice if the motion were granted, the Court finds excusable neglect to grant Plaintiff’s 14 request. There will not be, however, additional extensions granted to Plaintiff to file his 15 opening brief and the Clerk will be directed to dismiss this appeal without prejudice if 16 Plaintiff’s opening brief is not filed on or before Wednesday, July 18, 2012. 17 In the interests of justice, 18 IT IS ORDERED that Plaintiff’s Second Unopposed Motion to Extend Time to File 19 Opening Brief, doc. 26, is GRANTED. Plaintiff shall file his opening brief, in full 20 compliance with the Local Rules, on or before Wednesday, July 18, 2012. 21 IT IS FURTHER ORDERED that if Plaintiff does not file his opening brief on or 22 before Wednesday, July 18, 2012, the Clerk is kindly directed to dismiss this appeal without 23 prejudice and further order of the Court. 24 Dated this 13th day of July, 2012. 25 26 27 28 -2-

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