Clements v. T-Mobile USA, Inc et al

Filing 69


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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 SAN JOSE DIVISION 8 9 BRADFORD ARTHUR CLEMENTS, Plaintiff, 10 United States District Court Northern District of California 11 12 13 14 15 16 v. T-MOBILE USA, INC, et al., Case No. 5:22-cv-07512-EJD ORDER DENYING RELIEF FROM PRIOR ORDER; GRANTING MOTION FOR EXTENTION OF TIME TO FILE REPLY; TERMINATING MOTION TO INCREASE PAGE LIMITATION Defendants. Re: Dkt. No. 56, 57, 58, 64 Plaintiff, Bradford Arthur Clements, has filed two motions seeking relief from the Court’s January 19, 2024, Order (“Prior Order”) granting T-Mobile’s motion to compel arbitration and dismiss this case. Mot. for Recon., ECF No. 56; Mot. to Vacate, ECF No. 58; see also Order 17 Granting Motion to Dismiss (“Prior Order”), ECF No. 53. Defendants, T-Mobile US, Inc., and T- 18 -Mobile USA, Inc., (“T-Mobile”), filed an opposition to the motion to vacate, and Clements filed a 19 reply. Opp’n, ECF No. 62; Reply, ECF No. 66. Clements also filed two related administrative 20 21 22 23 motions to increase page limitations and to extend his time to file a reply in support of his motion to vacate. Mot. to Increase Page Count, ECF No. 57; Mot. for Extension of Time, ECF No. 64. Upon careful review of the relevant documents, the Court finds this matter suitable for decision without oral argument pursuant to Local Rule 7-1(b). For the reasons explained below, 24 the Court DENIES Clements’s motions for reconsideration and vacatur of the Prior Order, 25 GRANTS Clements’s motion for extension of time to file a reply, and TERMINATES as moot 26 Clements’s motion for increased page limits. 27 28 Case No.: 5:22-cv-07512-EJD ORDER DENYING RELIEF FROM PRIOR ORDER 1 1 I. BACKGROUND On January 19, 2024, the Court issued an Order granting T-Mobile’s motion to compel 2 3 arbitration and dismiss.1 See Prior Order. The Court found that the 2019 Arbitration Agreement between Clements and T-Mobile was valid, and the claims asserted in Clements’s amended 4 complaint fell within the scope of the Arbitration Agreement. Id. at 8–11. Though Clements did 5 6 not file an opposition, the Court considered and rejected Clements’s invalidity arguments raised in his complaint and prior filings—namely, the Court rejected Clements’s argument that he did not 7 mutually assent to the 2019 Arbitration Agreement given that it lacked a provision to guide 8 conflicts between the Terms and Conditions and the American Arbitration Association (“AAA”) 9 Rules. Id. The Court examined the Arbitration Agreement, as well as relevant Ninth Circuit and 10 California state law authority, and found that the lack of provision guiding conflicts of law did not 11 United States District Court Northern District of California render the Arbitration Agreement invalid for lack of mutual assent. Id. 12 As indicated above, Clements did not file an opposition to T-Mobile’s motion. Clements 13 also did not request leave to file an untimely opposition before the Court issued its Prior Order. 14 As the Prior Order examined in great length, given Clements’s repeated delays, procedural errors, 15 and lack of an opposition, the Court also found dismissal appropriate under Rule 41(b) upon 16 consideration of the five Pagtalunan factors. Id. at 5–8. Specifically, the Court made the 17 18 19 following findings: (1) the public’s interest in expeditious resolution of litigation favored dismissal; (2) the Court’s need to efficiently manage its own docket favored dismissal; (3) the Court did not find undue prejudice to Clements; (4) given Clements’s repeated failure to adhere to 20 scheduling orders, the Court declined to issue an order to show cause; and (5) public policy 21 favoring disposition of cases on their merits did not outweigh the prior factors. Id. 22 Clements now moves to vacate the Prior Order and permit Clements to file an opposition 23 pursuant to Rules 6(b)(1)(B), 54(b), 59(e), and 60(b). Clements primarily takes issue with the 24 25 26 27 28 1 The Court posted the original order on January 18, 2024. ECF No. 52. Upon observing a mistake in its description of the procedural history arising from oversight or omission, the Court issued an amended order on January 19, 2024, pursuant to Federal Rule of Civil Procedure 60(a). Because the amended order supersedes the original order, the Court will not consider Clements’s arguments regarding the superseded order. Case No.: 5:22-cv-07512-EJD ORDER DENYING RELIEF FROM PRIOR ORDER 2 1 Court’s Rule 41(b) analysis, arguing that various circumstances prevented him from filing an 2 opposition and adhering to prior scheduling orders, including his discovery dispute with T-Mobile 3 and an unanswered inquiry to the Courtroom Deputy. Clements asks the Court to vacate the Prior 4 Order and allow Clements to file an opposition. Clements also moves for the Court to consider his 5 untimely reply to the present motion and to extend the page limitations of his motion to vacate. 6 II. An order granting a motion to compel arbitration and dismiss the claims with prejudice is a 7 8 “final decision.” Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 86–87 (2000). 9 Motions to alter such an order are therefore governed by the procedures for seeking relief from a 10 United States District Court Northern District of California LEGAL STANDARD final decision, which here would be Federal Rule of Civil Procedure 60(b). 11 Rule 60(b) provides that a court may relieve a party from a final order under six 12 circumstances: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 13 evidence; (3) fraud, misrepresentation, or misconduct; (4) the judgment is void; (5) the judgment 14 was satisfied, released, discharged, reversed or vacated, or enforcement is no longer equitable; and 15 (6) any other reason that justifies relief. Fed. R. Civ. P. 60(b)(1)–(6). “Reconsideration for any of 16 the reasons set forth in Rule 60(b) is an extraordinary remedy that works against the interest of 17 finality and should be applied only in exceptional circumstances.” Fed. Trade Comm'n v. John 18 Beck Amazing Profits, LLC, No. 9-cv-4719-MWF, 2021 WL 4313101, at *1 (C.D. Cal. Aug. 19, 19 2021) (internal quotation marks omitted). 20 III. DISCUSSION 21 A. 22 As an initial matter, on the last day for filing Clements’s reply in support of the present Motion for Extension of Time to File Reply 23 motion to vacate, Clements filed a motion requesting an extension of time to file his reply; and so, 24 the pattern regrettably continues. See Mot. for Extension of Time. The Court will continue its 25 generosity and once again allow this practicing attorney to file past the allotted deadline. Thus, 26 Clements’s motion for an extension of time is GRANTED, and the Court will consider the 27 arguments presented in his reply. 28 Case No.: 5:22-cv-07512-EJD ORDER DENYING RELIEF FROM PRIOR ORDER 3 B. 1 Motion for Increased Page Limit In the event that the Court interpreted his motion to vacate and file an opposition as purely 2 a request for enlargement of time under Local Rule 6-3, Clements also filed a motion requesting 3 an increased page limit. See Mot. for Increased Page Count. Clements was correct in his 4 5 assumption that Local Rule 6-3 does not apply to Clements’s motion to vacate. Therefore, the Court TERMINATES as moot Clements’s motion to extend the page limit. 6 C. 7 Motions to Vacate Prior Order Clements’s two substantive motions—for reconsideration of the Prior Order and to vacate 8 the Prior Order—raise the same essential arguments and seek the same relief. Because the Prior 9 Order granted a motion to compel arbitration and dismiss the claims with prejudice, the Prior 10 Order was a “final decision” by which the procedures for seeking the relief requested here are 11 United States District Court Northern District of California governed by Rule 60(b). See Green Tree Fin., 531 U.S. at 86–87. Therefore, the Court will 12 analyze Clements’s motions under Rule 60(b).2 13 To begin its discussion, the Court emphasizes that Clements has not challenged the 14 substance of the Court’s finding that the claims here fall within the scope of a valid Arbitration 15 Agreement, except to argue that the Prior Order must be vacated because Clements did not have 16 the discovery needed to successfully oppose T-Mobile’s motion. However, Clements has made no 17 effort to explain how any additional discovery would have affected the Court's decision. Instead 18 of explaining what materials he expected to receive from T-Mobile and how that discovery would 19 have bolstered his invalidity arguments, Clements offers vague and conclusory statements, 20 21 22 including that he “certainly would have gathered evidence and turned to the Court to challenge mutual assent and alteration of material terms,” that he needed discovery “to make the precise arbitration-agreement challenges described by the Court,” that the discovery was “essential,” and 23 24 25 26 27 28 2 Clements also raises arguments under Federal Rules of Civil Procedure 59(e) and 54(b)—the rules permitting revisions to judgments and motions to alter or amend a judgment. However, no separate document setting out a judgment has been entered in this case to date, and 150 days have not run from the entry of the final order in the civil docket. Fed. R. Civ. P. 58(c). Thus, Rules 59(e) and 54(b) are inapplicable. However, the Court will consider the arguments Clements raised under these rules in its analysis under Rule 60(b). The Court will also consider Clements’s arguments under Rule 6(b)(1)(B) in its excusable neglect analysis below. Case No.: 5:22-cv-07512-EJD ORDER DENYING RELIEF FROM PRIOR ORDER 4 United States District Court Northern District of California 1 that “he depended on T-Mobile’s timely compliance with the discovery deadlines.” Mot. for 2 Recon. 2, 8, 9, 15. T-Mobile explicitly highlighted this deficiency in its opposition, but 3 Clements’s reply still failed to provide any description of how he plans to meritoriously challenge 4 T-Mobile’s motion and what information or materials he requires to make his arguments. See 5 Opp’n 7 (“Plaintiff makes no effort to suggest why permitting him to file an opposition would do 6 anything but delay these proceedings.”). The Court observes that, in the absence of any facts 7 supporting Clements’s conclusion that discovery would yield a different outcome, Clements’s 8 insistence on the necessity of this discovery appears merely as a request for a fishing expedition. 9 See, e.g., Nastrom v. JPMorgan Chase Bank, N.A., No. 1:11-CV-01998-SAB, 2013 WL 245734, 10 at *6 (E.D. Cal. Jan. 22, 2013) (“[T]he Court notes that, in order to justify relief from judgment, 11 Plaintiffs must also demonstrate how the filing of their opposition would have swayed the Court's 12 decision in granting Defendants' motion to dismiss. Here, Plaintiffs make no effort to address the 13 substantive basis upon which the Court granted Defendants' motion to dismiss.”). 14 Moving to Clements’s primary issue—the Court’s analysis of Clements’s failure to adhere 15 to the Court’s scheduling orders, including failing to file a timely opposition to T-Mobile’s motion 16 to dismiss—Clements argues that vacatur of this finding is warranted due to excusable neglect 17 pursuant to Rule 60(b)(1), among other reasons which the Court will consider under Rule 60(b)(6). 18 19 a. Excusable Neglect To determine whether neglect is excusable, the Ninth Circuit applies the four-part Pioneer 20 test, examining: (1) the danger of prejudice to the opposing party; (2) the length of the delay and 21 its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was 22 within the reasonable control of the movant; and (4) whether the movant acted in good faith. See 23 Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) (quoting Pioneer Inv. Servs. 24 Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)). The Court's “determination is at 25 bottom an equitable one, taking account of all relevant circumstances surrounding the party's 26 omission.” Pioneer, 507 U.S. at 401. 27 28 Clements argues that his neglect in failing to file an opposition or adhere to prior Case No.: 5:22-cv-07512-EJD ORDER DENYING RELIEF FROM PRIOR ORDER 5 1 scheduling orders is excusable due to a variety of considerations, including T-Mobile’s failure to 2 comply with his discovery requests and his unanswered query with the Courtroom Deputy. 3 Having considered the Pioneer factors, the Court finds that Clements’s neglect is not excusable 4 under these circumstances. 5 6 7 8 United States District Court Northern District of California 9 i. Prejudice to Opposing Party The first factor, danger of prejudice to the opposing party, does not support a finding of excusable neglect. It is important to reiterate here that Clements originally chose to bring his claims against TMobile in an arbitration proceeding in Texas. Pet. to Compel Arb. ¶ 14. After initiating the 10 arbitration proceedings, but prior to being assigned an arbitrator, Clements contacted the AAA to 11 seek a change of venue from Texas to California pursuant to his 2021 Arbitration Agreement with 12 T-Mobile. Id. ¶ 18. The AAA informed Clements that his case will proceed “as initially filed,” 13 and the venue and choice of law issue could be properly raised to the arbitrator upon appointment. 14 Id. ¶ 21. Clements was not pleased with this response. See id., Ex. 16, ECF No. 1-16. Clements 15 refused to wait for an arbitrator to be assigned, instead choosing to file a new action in this Court 16 demanding a change in arbitration venue pursuant to his 2021 Arbitration Agreement’s venue 17 selection clause. See id. Approximately four months later, Clements sought and secured leave to 18 file an amended complaint changing his case from a petition to compel arbitration to a complaint 19 for damages, alleging the same causes of action he raised in his pending Texas arbitration 20 proceedings. See Am. Compl; see also Pet. to Compel Arb., Ex. 3, ECF No. 1-3. Clements now 21 argues that he is permitted to litigate these causes of action here because he believes that the 2019 22 Arbitration Agreement applies to his claims, rather than the 2021 Arbitration Agreement he 23 previously raised, and the 2019 Arbitration Agreement is unenforceable. Am. Compl. ¶ 104–06; 24 Mot. for Leave to File Am. Compl., ECF No. 23. T-Mobile informs the Court that Clements’s 25 arbitration proceedings have been held in abeyance since the initiation of the present action, and 26 T-Mobile has had to pay fees to keep that action abated while Clements carried out his claims 27 here. Opp’n 5. The Court finds that the pending arbitration proceedings, in light of the delays in 28 Case No.: 5:22-cv-07512-EJD ORDER DENYING RELIEF FROM PRIOR ORDER 6 1 this matter summarized in the Prior Order, support T-Mobile’s claim that permitting Clements to 2 file an untimely opposition at this stage would be prejudicial. 3 4 Mobile given that, as discussed above, Clements has still failed to even identify on what new 5 grounds he would meritoriously challenge T-Mobile’s motion. See, e.g., Nastrom, 2013 WL 6 245734, at *6. 7 Considering the pending arbitration proceeding and lack of showing that an opposition 8 would present any new argument that may alter the Court’s findings, the Court finds that this first 9 factor weighs against Clements. 10 ii. 11 United States District Court Northern District of California The Court also finds that permitting Clements to file an opposition would prejudice T- Length of Delay Similarly, the second factor’s consideration of delay does not support a finding of 12 excusable neglect. T-Mobile’s motion was filed nearly one year ago. Clements had already 13 sought and secured five months of extensions for his opposition before failing to meet his most 14 recent deadline—ironically, Clements once again could not manage to meet the deadline to file a 15 reply to this present motion. See Mot. for Extension of Time. The Court is unconvinced that if it 16 vacated the Prior Order, re-opened the case, and allowed Clements to file an opposition, that 17 Clements would, indeed, file an opposition within the allotted time. 18 19 20 iii. Reason for Delay As to the third and most heavily weighed factor, the Court finds that Clements has failed to provide any reasonable justification for his delays. 21 First, Clements argues that his failure to file an opposition is due to his unanswered 22 October 17, 2023, email to the Courtroom Deputy. Mot. for Recon. 2–5; Mot. to Vacate 8; Reply 23 7–8. In Clements’s email, he notified the Courtroom Deputy that he had filed a case management 24 statement before a magistrate judge and sought advice on next steps. Mot. for Recon. 3–4. The 25 case management statement indicated that Clements was experiencing a discovery dispute with T- 26 27 28 Case No.: 5:22-cv-07512-EJD ORDER DENYING RELIEF FROM PRIOR ORDER 7 United States District Court Northern District of California 1 Mobile.3 Case Management Statement, ECF No. 42. This email was inadvertently sent to the 2 Courtroom Deputy’s spam folder and was not received. Mot. for Recon. 3–4. Clements did not 3 follow up with the Courtroom Deputy for approximately three months, until after the Court’s 4 Order granting T-Mobile’s motion to dismiss. See id. Clements compares his behavior to that of 5 attorneys who PACER failed to notify of a filing deadline, who were out of the country due to a 6 family emergency, and who made a single calendaring mistake resulting in one three-day filing 7 delay. Id. 4–5. The lack of a response to Clements’s October 17, 2023, email and Clements’s 8 three-month delay in following up to that email is incomparable. Although it is unfortunate that 9 the email was not originally received, this email bears no material relevance on Clements’s ability 10 to file a timely response to T-Mobile’s motion or move for an extension, and it certainly does not 11 excuse his repeated failure to adhere to the Court’s prior scheduling orders. While Courtroom 12 Deputies can be an informative resource to assist litigants with administrative questions regarding 13 courtroom operations, all litigants, particularly practicing attorneys, are expected to look to the 14 Civil Local Rules and the Federal Rules of Civil Procedure to inform their filings and seek relief 15 through motions in compliance with these rules. In other words, as a practicing attorney, the 16 Court expects Clements to be capable of educating himself on the local and federal rules and to 17 not rely solely on the Courtroom Deputy for advice on how to seek relief for a discovery dispute 18 or an extension of filing deadlines. The Court also notes that Magistrate Judge Van Keulen 19 similarly found these same circumstances did not constitute excusable neglect for failing to 20 properly file a motion to compel discovery prior to proceeding straight to a motion for sanctions. 21 See Order Den. Mot. for Sanctions (finding that Clements’s confusion regarding his case 22 management statement and email with the Court did not constitute excusable neglect). Second, Clements argues that his failure to file an opposition is due to T-Mobile’s failure 23 24 to comply with the Court’s August 2, 2023, Order granting the Parties’ stipulation to engage in 25 limited discovery. Mot. for Recon. 6–7; Mot. to Vacate 6–8; Reply 3–4. The Court again notes 26 27 28 The Court’s Prior Order already addressed the procedural errors in Clements’s case management statement and need not repeat them here. Case No.: 5:22-cv-07512-EJD ORDER DENYING RELIEF FROM PRIOR ORDER 8 3 United States District Court Northern District of California 1 that, to this day, Clements has still not described what he expected to receive from T-Mobile 2 which would have bolstered his argument that the Arbitration Agreement was invalid. Thus, 3 Clements has failed to show how this discovery dispute hindered his ability to file a timely 4 response to T-Mobile’s motion to dismiss or move for an extension. Even if Clements believed 5 that noncompliance with the discovery stipulation barred him from opposing T-Mobile’s motion 6 to dismiss—a belief for which Clements has yet to provide justification—Clements has provided 7 no facts that would have prevented him from properly filing a stipulation or motion to continue his 8 opposition deadline, as he had done, and as the Court had granted, on several occasions prior.4 9 See Prior Order 6. Similarly, nothing barred Clements from filing a motion to compel discovery if 10 he believed that the discovery was vital to his opposition. As Magistrate Judge Van Keulen 11 observed in her order denying Clements’s motion for sanctions arising out of this very discovery 12 dispute, “[a]ll Plaintiff had to do was read the applicable rules, as is required of all attorneys and 13 pro se litigants appearing before this Court.” Order Den. Mot. for Sanctions 6. Finally, Clements provides various calendaring excuses for failing to meet other filing 14 15 deadlines, including examples of deadlines that fell on holidays or weekends. Mot. for Recon. 10– 16 12. These excuses do not justify Clements’s consistent and repeated delays and need for extensions. 17 And even considering the holidays, Clements had still missed deadlines by multiple days. For 18 example, while one deadline fell on June 19, 2023, a national holiday, Clements did not attempt to 19 secure an agreement from T-Mobile for an extension until June 20, 2023, and he did not file the 20 stipulation seeking an extension until June 23, 2023. Joint Request to Extend Briefing Schedule and 21 Continue Hearing, ECF No. 38. This is but one example of Clements’s repeated lack of diligence 22 and pattern of eleventh-hour requests for extensions filed on or after the day his filings were due. 23 Therefore, in consideration of all the circumstances described above, the Court finds that 24 Clements has failed to show that his reasons for delay favors vacatur. 25 26 27 28 The Court also notes that the Court’s August 2, 2023, Order did not, as Clements states, “indicat[] that the Court would not entertain any continuance whatsoever.” Mot. for Recon. 13. If Clements experienced confusion regarding the Court’s modification to the proposed order, Clements had the ability to file a motion for clarification. Case No.: 5:22-cv-07512-EJD ORDER DENYING RELIEF FROM PRIOR ORDER 9 4 iv. 1 Good Faith Finally, Clements has failed to show how his neglect occurred in good faith. See Mot. to 2 Vacate 8. Indeed, courts have found similar circumstances whereby a party waited until after an 3 order to seek leave to file a response to show an apparent lack of good faith. Nastrom, 2013 WL 4 245734, at *3 (“[T]he Court notes that Plaintiffs could have filed their Rule 60 motion before the 5 order on Defendants' motion to dismiss was issued. By waiting until after the Court ruled on the 6 motion to dismiss, Plaintiffs took the wait-and-see approach to see if the Court denied Defendants' 7 motion to dismiss. Waiting for the Court's order gave Plaintiffs a chance to avoid the time and 8 expense in preparing their Rule 60 motion, but guaranteed that the Court would undertake the time 9 and expense of adjudicating Defendants' motion to dismiss. In other words, Plaintiffs hoped for 10 two bites at the apple by waiting for the Court's first ruling, and, if unfavorable, requesting leave United States District Court Northern District of California 11 to file a late opposition and thereby obtain a second ruling.”). Similarly here, the Court questions 12 why Clements waited until February 12, 2024, to request leave to file an untimely opposition 13 rather than when the Court took the unopposed motion under submission two months prior.5 14 b. 15 Other Reasons Justifying Relief Clements also offers additional arguments that do not squarely fit into Rule 60, thus the 16 Court will consider them as “any other reason that justifies relief” pursuant to Rule 60(b)(6). 17 First, Clements argues that vacatur is warranted because the Court erroneously failed to 18 consider material facts showing his diligence, such as his compliance with the discovery 19 stipulation, filing a sixty-two-page complaint, and submitting “quality” “legal research, writing, 20 and oral advocacy.” Mot. for Recon. 14. These facts are either irrelevant or not supported by the 21 record, and they do not negate the Court’s findings of inexcusable neglect. 22 Second, Clements argues that the Court failed to consider legal arguments made in an 23 email he sent to the Courtroom Deputy in the time between the Court posting its original order and 24 its amended order, suggesting that the Court must have failed to consider his arguments in error 25 26 27 28 5 Rather than properly filing a motion for leave to file an untimely opposition, Clements filed an improper “notice” indicating his disagreement with the Court taking the motion under submission. Even this improper “notice” did not request leave to file an untimely opposition. Case No.: 5:22-cv-07512-EJD ORDER DENYING RELIEF FROM PRIOR ORDER 10 1 given the “puzzling rush” between the original and amended order. See Mot. for Recon. 1, 7–8. The Court does not consider legal argument presented on the matter in an email to a 2 3 Courtroom Deputy. The Court will only consider legal arguments raised properly before it. This 4 is basic civil procedure. The Court also notes that its amended order properly cured a mistake the 5 Court observed in the procedural history arising from oversight pursuant to Federal Rule of Civil 6 Procedure 60(a); but applying the correct procedural history did not alter the Court’s findings— 7 indeed, it highlighted the extent of Clements’s repeated eleventh-hour requests for extensions. *** United States District Court Northern District of California 8 9 Despite Clements’s maintenance of the burden and complexity of this case, the facts here 10 are relatively simple. The Court repeats, Clements made the choice to initiate arbitration of these 11 claims in Texas almost two years ago before he amended his complaint to litigate his claims here. 12 Clements’s original opposition deadline to T-Mobile’s motion was over ten months ago now, and 13 yet to this day, Clements has failed to explain how he planned to meritoriously challenge the 14 enforceability of the 2019 Arbitration Agreement beyond the allegations made in his prior filings, 15 which the Court considered and rejected in its Prior Order, and he has failed to explain how the 16 discovery he sought would be “essential” to support his challenges. Neither the occurrence of a 17 discovery dispute nor the other excuses for Clements’s delays justify vacating the Court’s Prior 18 Order dismissing this matter and compelling arbitration. 19 IV. 20 CONCLUSION Based on the foregoing, the Court DENIES Clements’s motions for reconsideration and 21 vacatur of the Prior Order, GRANTS Clements’s motion for extension of time, and 22 TERMINATES as moot Clements’s motion for increased page limits. 23 24 IT IS SO ORDERED. Dated: May 8, 2024 25 26 EDWARD J. DAVILA United States District Judge 27 28 Case No.: 5:22-cv-07512-EJD ORDER DENYING RELIEF FROM PRIOR ORDER 11

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