Espinoza v. California Highway Patrol et al

Filing 30

ORDER Granting Plaintiff's 26 Motion for Extension of Time to File Opposition, signed by District Judge Dale A. Drozd on 5/2/2016. (Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERNEST J. ESPINOZA,

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No. 1:16-cv-00193-DAD-JLT

Plaintiff,
v.
CALIFORNIA HIGHWAY PATROL, et
al.,

ORDER GRANTING PLAINTIFF’S MOTION
FOR EXTENSION OF TIME TO FILE
OPPOSITION
(Doc. No. 26)

Defendants.

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On February 11, 2016, plaintiff filed a complaint naming the State of California,

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California Highway Patrol, City of Bakersfield, County of Kern, Officer Matt A. Ashe, and Does

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1–20 as defendants. On April 15 and 19, 2016, the court dismissed the County of Kern and City

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of Bakersfield from the action, and the case currently proceeds against defendants State of

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California, California Highway Patrol, and Officer Matt A. Ashe. (Doc. Nos. 21, 24.)

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On March 28, 2016, defendants filed a motion to dismiss plaintiff’s complaint. (Doc. No.

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16.) Under the governing Local Rule, plaintiff’s opposition to defendant’s motion was due April

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19, 2016. On April 28, 2016, plaintiff filed a motion seeking an extension of time to file that

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opposition, arguing that the failure to timely file their opposition was due to “excusable neglect.”

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(Doc. No. 26 at 2.) On April 29, 2016, defendants filed a statement of non-opposition to

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plaintiff’s motion for an extension of time. (Doc. No. 28.)
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Federal Civil Procedure Rule 6 provides that “[w]hen an act may or must be done within a

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specified time, the court may, for good cause, extend the time . . . on motion made after the time

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has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B).

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To determine whether “excusable neglect” exists, courts apply a four-factor equitable test,

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examining: (1) “the danger of prejudice to the [nonmoving party];” (2) “the length of the delay

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and its potential impact on judicial proceedings;” (3) “the reason for the delay, including whether

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it was within the reasonable control of the movant,” and (4) “whether the movant acted in good

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faith.” Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380,

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395, 113 S. Ct. 1489, 1498 (1993). See also Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253,

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1261 (9th Cir. 2010); Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997). The

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Ninth Circuit has recognized that there is no “rigid legal rule against late filings attributable to

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any particular type of negligence,” and has permitted extensions of time to be granted for reasons

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such as calendaring mistakes. Ahanchian, 624 F.3d at 1261; see also Pincay v. Andrews, 389

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F.3d 853 (9th Cir. 2004).
Plaintiff’s counsel has demonstrated the good cause required by Rule 6(b)(1), explaining

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that their failure to timely file the opposition was an inadvertent docketing/calendaring error on

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their part. (Doc. No. 26 at 10.) There is also no indication that an extension of time would

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prejudice the defendants, or that plaintiff’s counsel has acted in bad faith. In fact, on April 28,

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2016, plaintiff’s counsel filed the opposition to the pending motion to dismiss. Finally,

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defendants do not oppose the motion for an extension of time. (Doc. No. 28.)
Accordingly, the court grants plaintiff’s motion for leave to file an out of time opposition

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to defendants’ motion to dismiss. The hearing on the motion has been rescheduled for June 7,

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2016 at 9:30 a.m. Defendants may serve and file a reply to plaintiff’s opposition not less than

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seven days preceding that new hearing date. See Local Rule 230(d).

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IT IS SO ORDERED.

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Dated:

May 2, 2016
UNITED STATES DISTRICT JUDGE

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