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)

Case 3:22-cv-01895-BAS-DDL Document 11 Filed 01/18/23 PageID.241 Page 1 of 2

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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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.

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Before the Court is Defendant’s unopposed ex parte application to request that the

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Court accept a late-filed brief pursuant to Local Rules 7.1(e)(5) and 83.3(g) and this Court’s

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Standing Order. (Ex Parte App., ECF No. 10.) The hearing date for Plaintiff’s pending

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Motion to Remand (ECF No. 5) is January 30, 2023. Pursuant to Local Rule 7.1(e)(2),

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Defendant’s opposition papers would normally have been due January 16, 2023. But

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because January 16, 2023 was a federal holiday, the opposition brief was due January 13,

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2023. CivLR 7.1(c); Fed. R. Civ. P. 6(a). Defendant represents that it attempted to file its

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opposition brief on January 13, 2023, at approximately 7:30 p.m. (Ex Parte App. at 2.)

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However, the CM/ECF system for the Southern District of California was down for
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22cv1895

Case 3:22-cv-01895-BAS-DDL Document 11 Filed 01/18/23 PageID.242 Page 2 of 2

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maintenance from 5:00 p.m. PST on Friday, January 13, 2023, to noon on Sunday, January

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15, 2023. (Ex Parte App. at 2.) Defendant’s local counsel failed to take this maintenance

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into consideration. As a result, Defendant was not able to file the opposition brief by the

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January 13, 2023 filing deadline. (Id.) Defendant did, however, timely serve Plaintiff with

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the opposition brief by email. (Id.) Defendant also represents that it has met and conferred

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with Plaintiff on this matter and Plaintiff does not oppose this ex parte application. (Id. at

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2–3.)

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Upon considering the Defendant’s ex parte application and the relevant four-factor

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equitable test, the Court finds Defendant failed to timely act due to its counsel’s excusable

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neglect. See Fed. R. Civ. P. 6(b); Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261

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(9th Cir. 2010) (enumerating four-factor equitable test for determining excusable neglect);

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see also Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 392 (1993) (“[I]t

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is clear that ‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic concept’ and is not

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limited strictly to omissions caused by circumstances beyond the control of the movant.”).

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Thus, the Court retroactively extends the time period for Defendant to file its opposition

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and will consider Defendant’s opposition to Plaintiff’s motion to remand.

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IT IS SO ORDERED.

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DATED: January 18, 2023

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22cv1895