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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Michael J. Astrue, Commissioner of)
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Social Security,
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Defendant.
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Russell Johnson,

CV-11-8150-PCT-LOA
ORDER

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This case arises on Plaintiff’s untimely second motion for an extension of time to file

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his opening brief. (Doc. 26) Plaintiff’s counsel represents that Commissioner’s counsel has

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no objection and “requests an extension of 6 days, until July 18, 2012, to file her Opening

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Brief, due to our heavy workload at this time and incorrectly calendaring the due date.” (Id.)

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This Social Security appeal was filed on September 21, 2011. (Doc. 1) The

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September 27, 2011 scheduling order required Plaintiff to file an opening brief “[w]ithin

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sixty (60) days from the filing of the answer and record.” (Doc. 6) On March 23, 2012, the

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Commissioner filed a certified copy of the administrative transcript. (Doc. 23) On May 24,

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2012, the Court granted Plaintiff a thirty day extension to file Plaintiff’s opening brief

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because “Attorney Hansen, a sole practitioner with no regular staff, has four briefs due to the

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Arizona Court of Appeals and the Arizona Industrial Commission.” Plaintiff was ordered

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to file his opening brief on or before Friday, June 22, 2012. On July 12, 2012, three weeks

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beyond the court-ordered deadline to file an opening brief, Plaintiff filed the pending

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motion.

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Plaintiff’s motion was neither timely filed nor does it demonstrate good cause to grant

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the motion under Rule 6(b)(1)(A), Fed.R.Civ.P. It does, however, demonstrate counsel’s

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excusable neglect pursuant to Rule 6(b)(1)(B). Excusable neglect is meant to be an “elastic

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concept and is not limited strictly to omissions caused by circumstances beyond control of

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the movant.” Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 391

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(1993); see also Pincay v. Andrews, 389 F.3d 853, 854 (9th Cir. 2004) (the court found

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excusable neglect where an attorney delegated calendar duties to a paralegal, who ultimately

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misread the Federal Rules and calendared a deadline incorrectly.).

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Although the Court is reluctant to grant Plaintiff’s request for another enlargement of

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time in light of the age of this case, the deadline in the scheduling order, and the prior

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extension given to Plaintiff, in the interests of resolving the issues raised in the Petition on

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the merits, the Commissioner having no objection, and the Commissioner will suffer no

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prejudice if the motion were granted, the Court finds excusable neglect to grant Plaintiff’s

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request. There will not be, however, additional extensions granted to Plaintiff to file his

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opening brief and the Clerk will be directed to dismiss this appeal without prejudice if

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Plaintiff’s opening brief is not filed on or before Wednesday, July 18, 2012.

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In the interests of justice,

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IT IS ORDERED that Plaintiff’s Second Unopposed Motion to Extend Time to File

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Opening Brief, doc. 26, is GRANTED. Plaintiff shall file his opening brief, in full

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compliance with the Local Rules, on or before Wednesday, July 18, 2012.

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IT IS FURTHER ORDERED that if Plaintiff does not file his opening brief on or

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before Wednesday, July 18, 2012, the Clerk is kindly directed to dismiss this appeal without

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prejudice and further order of the Court.

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Dated this 13th day of July, 2012.

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