Diaz v. Nexa Mortgage, LLC et al

Filing 11

Order Granting Ex Parte Application to Request Acceptance of Late Filing (ECF No. #10 ). Signed by Judge Cynthia Bashant on 1/18/23. (All non-registered users served via U.S. Mail Service)(jmo)

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Case 3:22-cv-01895-BAS-DDL Document 11 Filed 01/18/23 PageID.241 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 18 DAMIAN DIAZ, individually and on behalf of all others similarly situated, Case No. 22-cv-1895-BAS-DDL ORDER GRANTING EX PARTE APPLICATION TO REQUEST ACCEPTANCE OF LATE FILING (ECF No. 10) Plaintiff, v. NEXA MORTGAGE, LLC, Defendant. 19 20 Before the Court is Defendant’s unopposed ex parte application to request that the 21 Court accept a late-filed brief pursuant to Local Rules 7.1(e)(5) and 83.3(g) and this Court’s 22 Standing Order. (Ex Parte App., ECF No. 10.) The hearing date for Plaintiff’s pending 23 Motion to Remand (ECF No. 5) is January 30, 2023. Pursuant to Local Rule 7.1(e)(2), 24 Defendant’s opposition papers would normally have been due January 16, 2023. But 25 because January 16, 2023 was a federal holiday, the opposition brief was due January 13, 26 2023. CivLR 7.1(c); Fed. R. Civ. P. 6(a). Defendant represents that it attempted to file its 27 opposition brief on January 13, 2023, at approximately 7:30 p.m. (Ex Parte App. at 2.) 28 However, the CM/ECF system for the Southern District of California was down for -1- 22cv1895 Case 3:22-cv-01895-BAS-DDL Document 11 Filed 01/18/23 PageID.242 Page 2 of 2 1 maintenance from 5:00 p.m. PST on Friday, January 13, 2023, to noon on Sunday, January 2 15, 2023. (Ex Parte App. at 2.) Defendant’s local counsel failed to take this maintenance 3 into consideration. As a result, Defendant was not able to file the opposition brief by the 4 January 13, 2023 filing deadline. (Id.) Defendant did, however, timely serve Plaintiff with 5 the opposition brief by email. (Id.) Defendant also represents that it has met and conferred 6 with Plaintiff on this matter and Plaintiff does not oppose this ex parte application. (Id. at 7 2–3.) 8 Upon considering the Defendant’s ex parte application and the relevant four-factor 9 equitable test, the Court finds Defendant failed to timely act due to its counsel’s excusable 10 neglect. See Fed. R. Civ. P. 6(b); Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 11 (9th Cir. 2010) (enumerating four-factor equitable test for determining excusable neglect); 12 see also Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 392 (1993) (“[I]t 13 is clear that ‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic concept’ and is not 14 limited strictly to omissions caused by circumstances beyond the control of the movant.”). 15 Thus, the Court retroactively extends the time period for Defendant to file its opposition 16 and will consider Defendant’s opposition to Plaintiff’s motion to remand. 17 IT IS SO ORDERED. 18 19 DATED: January 18, 2023 20 21 22 23 24 25 26 27 28 -2- 22cv1895

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