Shaw v. Kelley et al

Filing 69

ORDER by Magistrate Judge Virginia K. DeMarchi denying 66 plaintiff's Administrative Motion to Strike. Plaintiff's reply due by 12/13/2018. Motion Hearing continued to 12/18/2018 10:00 AM in San Jose, Courtroom 2, 5th Floor before Magistrate Judge Virginia K. DeMarchi.(vkdlc2S, COURT STAFF) (Filed on 12/7/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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CECIL EUGENE SHAW,
Plaintiff,

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United States District Court
Northern District of California

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Case No.16-cv-03768-VKD
ORDER DENYING PLAINTIFF’S
MOTION TO STRIKE

v.
RANDY KELLEY, et al.,

Re: Dkt. No. 66

Defendants.

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On October 29, 2018, plaintiff Cecil Eugene Shaw moved for summary judgment and

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noticed the motion for a December 4, 2018 hearing. Dkt. No. 59. The Court subsequently granted

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the parties’ joint request to continue the motion hearing to December 11, 2018 due to defense

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counsel’s trial calendar. Dkt. Nos. 61, 63. The briefing deadlines, however, were not altered or

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amended, and defendants did not file a response to Mr. Shaw’s summary judgment motion by the

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November 13, 2018 deadline. Civ. L.R. 7-3(a). Believing that defendants did not intend to

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oppose his motion for summary judgment, Mr. Shaw requested that the Court vacate the

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December 11 motion hearing and grant his motion for summary judgment on the papers. Dkt.

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No. 64. On November 29, defendants filed a belated opposition to Mr. Shaw’s motion for

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summary judgment. Dkt. No. 65.

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Mr. Shaw now moves for an order striking defendants’ opposition as untimely. Dkt. No.

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66. Defendants maintain that their tardy filing was due to excusable neglect under Rule 6(b) of the

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Federal Rules of Civil Procedure. They say that in view of the length of Mr. Shaw’s summary

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judgment papers, and because of defendants’ and defense counsel’s conflicting schedules over the

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Thanksgiving holiday, they were unable to timely finalize and file their opposition. Dkt. No. 67.

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Rule 6(b) provides that, “on motion made after the time has expired,” the Court may

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extend the time for performing an act “if the party failed to act because of excusable neglect.”

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Fed. R. Civ. P. 6(b)(1)(B). For purposes of Rule 6(b), “excusable neglect” is judged by the

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standard set out in Pioneer Investment Servs. Co. v. Brunswick Associates Ltd. Partnership, 507

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U.S. 380 (1993). See Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997)

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(observing that the Pioneer standard applies to Rule 6(b)). The “determination of whether neglect

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is excusable is an equitable one that depends on at least four factors: (1) the danger of prejudice to

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the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the

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reason for the delay; and (4) whether the movant acted in good faith.” Bateman v. U.S. Postal
Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000) (citing Pioneer, 507 U.S. at 395). “Although

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United States District Court
Northern District of California

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inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute

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‘excusable’ neglect, it is clear that ‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic

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

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movant.” Pioneer, 507 U.S. at 392. Courts may, “where appropriate, . . . accept late filings

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caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond

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the party’s control.” Id. at 388.

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In the present matter, the Court is skeptical of defendants’ proffered explanation for their

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delay. As noted by Mr. Shaw, if defendants needed more time to file their opposition, prudent

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counsel should have requested an extension before the filing deadline lapsed. Prior to filing their

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opposition, defendants did not ask for an extension and did not even seek leave to file their tardy

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opposition. The record instead suggests that defense counsel erroneously believed that the time

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for filing an opposition was extended when the motion hearing was continued (Dkt. No. 66-1) or

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that defendants’ belated filing may have been prompted by Mr. Shaw’s request to vacate the

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December 11 motion hearing. At the same time, however, the length of defendants’ delay (16

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days) and the potential impact on the judicial proceedings is minimal. This matter currently is

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scheduled for a February 27, 2019 final pretrial conference and a three-day bench trial starting

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April 1, 2019. Further, “summary judgment cannot be granted by default even if there is a

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complete failure to respond to the motion . . . .” Fed. R. Civ. P. 56 advisory committee’s note to
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2010 amendment; see also Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013) (same).

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Thus, Mr. Shaw would not be entitled to summary judgment unless the Court concluded that the

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record supported it. Mr. Shaw does not say how he has been prejudiced, if at all, by defendants’

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delay, and the prejudice to Mr. Shaw of having to defend his claims on the merits is minimal. See

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Bateman, 231 F.3d at 1224-25 (noting that the opposing party “would have lost a quick victory

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and, should it ultimately have lost the summary judgment motion on the merits, would have had to

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reschedule the trial date,” but that such prejudice was insufficient to justify the denial of a request

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to set aside a judgment). Given the potentially dispositive nature of summary judgment, and

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because the Court would be aided by full briefing on the matter, and in view of the fact that the

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case schedule can accommodate a modest continuance, the Court concludes that the interests of

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United States District Court
Northern District of California

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justice would be best served by accepting defendants’ belated opposition.

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Accordingly, Mr. Shaw’s motion to strike is denied. Mr. Shaw may file a summary

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judgment reply by December 13, 2018. The hearing on Mr. Shaw’s motion for summary

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judgment is continued to December 18, 2018, 10:00 a.m.

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IT IS SO ORDERED.
Dated: December 7, 2018

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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