Bay v. Commissioner of Social Security

Filing 21

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DENNIS T. BAY, 12 13 14 15 16 No. 2:17-cv-1034-TLN-KJN Plaintiff, v. ORDER COMMISSIONER OF SOCIAL SECURITY, Defendant. 17 18 On November 14, 2017, plaintiff filed a motion to strike the Commissioner’s cross-motion 19 for summary judgment, which was filed fourteen (14) days late. (ECF No. 16.) The 20 Commissioner filed a response to the motion, along with a request for an extension of time, 21 essentially admitting to a calendaring mistake and apologizing to plaintiff’s counsel and the court. 22 (ECF No. 18.) Plaintiff then filed a reply brief, which continues to fervently advocate for striking 23 the Commissioner’s cross-motion for summary judgment and deeming plaintiff’s motion for 24 summary judgment as unopposed. (ECF No. 20.) 25 Although the Commissioner indisputably failed to comply with the court’s scheduling 26 order, it has acknowledged its mistake and apologized to opposing counsel and the court. 27 Furthermore, there is no indication that plaintiff was substantially prejudiced by the relatively 28 brief delay. As such, striking the Commissioner’s cross-motion for summary judgment would be 1 1 a disproportionately harsh sanction under the circumstances here, especially given the general 2 policy embodied in the Federal Rules of Civil Procedure that cases should be resolved on their 3 merits whenever reasonably possible. Importantly, this is not a case where an attorney has 4 displayed a pattern of disregard for court deadlines and rules. Indeed, plaintiff’s counsel may 5 well consider adopting a more collegial and forgiving stance in these type of circumstances, 6 especially if in future she finds herself in need of an extension based on an unintentional, but 7 human, error. 8 9 10 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. 11 IT IS SO ORDERED. 12 This order resolves ECF Nos. 16 and 18. 13 Dated: November 20, 2017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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