McKinley v. Commissioner of Social Security

Filing 24

ORDER GRANTING 23 Defendant's Request for a Second Extension of Time, signed by Magistrate Judge Jennifer L. Thurston on 9/1/2016. Responsive brief due by 9/26/2016. No further extensions of time will be approved. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTINE MCKINLEY,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

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Defendant.
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Case No.: 1:15-cv-1078-JLT
ORDER GRANTING DEFENDANT’S
REQUEST FOR A SECOND EXTENSION OF
TIME

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On August 5, 2016, the Court granted Defendant’s request for an extension of time to file a

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response to Plaintiff’s opening brief. (Doc. 22) The Court ordered Defendant to “file a responsive

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brief no later than August 26, 2016.” (Id. at 2, emphasis in original) However, Defendant failed to file

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the response. On August 30, 2016, the parties filed a stipulation for Defendant to have a further

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extension of time to respond to the opening brief. (Doc. 23)

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The Scheduling Order permits only a single extension by the stipulation of parties (Doc. 8 at

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4), which was used by Plaintiff in seeking an extension to file the opening brief (Doc. 16). In addition,

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Plaintiff sought a second extension of time to file the opening brief. (Docs. 18-29) Thus, this is the

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fourth extension sought by the parties in this action. Notably, beyond the first extension, “requests to

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modify [the schedule] must be made by written motion and will only be granted for good cause.”

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(Doc. 8 at 4) Accordingly, the Court construes the stipulation of the parties to be a motion for an

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extension of time.
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As explained by the Ninth Circuit, a scheduling order “is not a frivolous piece of paper, idly

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entered, which can be cavalierly disregarded without peril.” Johnson v. Mammoth Recreations, Inc.,

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975 F.2d 604, 610 (9th Cir. 1992). The deadlines are considered “firm, real and are to be taken

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seriously by parties and their counsel.” Shore v. Brown, 74 Fed. R. Serv. 3d (Callaghan) 1260, 2009

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U.S. Dist. LEXIS 94828 at *7 (E.D. Cal. Oct. 9, 2009).

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Previously, Defendant’s counsel Jeffrey Chen asserts the additional time is necessary “because

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of a very heavy workload, including an upcoming Ninth Circuit brief, and because of a planned

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vacation in August.” (Doc. 21 at 1) In granting the third request for the extension of time, the Court

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cautioned the parties that no further extensions of time would be granted without a “showing of

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exceptionally good cause.” (Doc. 22 at 2) Mr. Chen now asserts a further extension of time is

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necessary due to “a very heavy workload, and because of some missed time from work due to an

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illness.” (Doc. 23 at 2)

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The Court does not find “exceptionally good cause” has been shown for the thirty-day extension

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requested. Nevertheless, Plaintiff does not oppose Defendant’s request for an additional extension of

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time. (See Doc. 23 at 2) Accordingly, IT IS HEREBY ORDERED:

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1.

Defendant’s request for an extension of time is GRANTED;

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2.

Defendant SHALL file a responsive brief no later than September 26, 2016;

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3.

The parties are advised that no further extensions of time will be approved; and

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4.

If Defendant fails to file the responsive brief in compliance with this deadline ordered
by the Court, the matter will be decided without any input by Defendant.

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IT IS SO ORDERED.
Dated:

September 1, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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