Bay v. Commissioner of Social Security
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 11/20/2017 DENYING plaintiff's 16 motion to strike and GRANTING the Commissioner's 18 request for an extension of time. The cross-motion is deemed timely filed. Plaintiff's optional reply brief shall be filed in accordance with the courts November 15, 2017 minute order.(Becknal, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DENNIS T. BAY,
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No. 2:17-cv-1034-TLN-KJN
Plaintiff,
v.
ORDER
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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On November 14, 2017, plaintiff filed a motion to strike the Commissioner’s cross-motion
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for summary judgment, which was filed fourteen (14) days late. (ECF No. 16.) The
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Commissioner filed a response to the motion, along with a request for an extension of time,
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essentially admitting to a calendaring mistake and apologizing to plaintiff’s counsel and the court.
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(ECF No. 18.) Plaintiff then filed a reply brief, which continues to fervently advocate for striking
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the Commissioner’s cross-motion for summary judgment and deeming plaintiff’s motion for
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summary judgment as unopposed. (ECF No. 20.)
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Although the Commissioner indisputably failed to comply with the court’s scheduling
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order, it has acknowledged its mistake and apologized to opposing counsel and the court.
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Furthermore, there is no indication that plaintiff was substantially prejudiced by the relatively
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brief delay. As such, striking the Commissioner’s cross-motion for summary judgment would be
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a disproportionately harsh sanction under the circumstances here, especially given the general
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policy embodied in the Federal Rules of Civil Procedure that cases should be resolved on their
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merits whenever reasonably possible. Importantly, this is not a case where an attorney has
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displayed a pattern of disregard for court deadlines and rules. Indeed, plaintiff’s counsel may
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well consider adopting a more collegial and forgiving stance in these type of circumstances,
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especially if in future she finds herself in need of an extension based on an unintentional, but
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human, error.
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Accordingly, plaintiff’s motion to strike is DENIED and the Commissioner’s request for
an extension of time is GRANTED. The cross-motion is deemed timely filed. Plaintiff’s optional
reply brief shall be filed in accordance with the court’s November 15, 2017 minute order.
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IT IS SO ORDERED.
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This order resolves ECF Nos. 16 and 18.
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Dated: November 20, 2017
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