VanOrden v. Bannock County et al

Filing 40

MEMORANDUM DECISION AND ORDER Plaintiff's Motion for Additional Time to Respond to Defendants' Motion for Summary Judgment (Docket No. 34 ) is DENIED. Plaintiff's responses to Defendants' Motion for Summary Judgment (Docket Nos. 37 & 39 ) shall be sealed unless otherwise ordered by the Court. Defendants' Application for Order of Dismissal (Docket No. 33 ) is DENIED. By future order, the Court will set for hearing Defendants' Motion for Summary Judgment. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
Case No.: 4:14-cv-00303-REB

JASON VANORDEN,
Plaintiff,

MEMORANDUM DECISION AND
ORDER RE:

vs.
BANNOCK COUNTY, SHERIFF’S
DEPARTMENT, CITY OF POCATELLO,
SHERIFF LOREN NIELSEN, CAPTAIN KEVIN
FONNSEBECK, CAPTAIN ELLE PETERSON,
DEPUTY SHANNON BLOXHAM, DEPUTY
IFEREIMI TABAKECE, DEPUTY SHELTON,
DEPUTY JARROD PHILLIPS, DEPUTY HOFF,
DETECTIVE ALEX HAMILTON, DEPUTY
KATHLEEEN BALLARD, SCOTT MARCHAND,
SERGEANT ERICK ANDERSON, OFFICER
MATT SHUTES, SERGEANT BILL COLLINS,
OFFICER TRAVIS EVANS, OFFICER DARREN
DANIELS, AND JOHN DOES 1-20,

PLAINTIFF’S MOTION FOR
ADDITIONAL TIME TO RESPOND
TO DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
(Docket No. 34)
DEFENDANTS’ APPLICATION FOR
ORDER OF DISMISSAL
(Docket No. 33)

Defendants.

Now pending before the Court are the following motions: (1) Plaintiff’s Motion for
Additional Time to Respond to Defendants’ Motion for Summary Judgment (Docket No. 34),
and (2) Defendants’ Application for Order of Dismissal (Docket No. 33). Having carefully
considered the record and otherwise being fully advised, the undersigned enters the following
Memorandum Decision and Order:
BACKGROUND
Plaintiff brought this wrongful death action on July 25, 2014, amending his Complaint on
October 15, 2014. (Docket Nos. 1 & 4). Defendants answered Plaintiff’s Amended Complaint
on November 7, 2014. (Docket No. 13).

MEMORANDUM DECISION AND ORDER - 1

On March 31, 2015, Defendants moved for summary judgment on all claims raised by
Plaintiff in his Amended Complaint. (Docket No. 32). Pursuant to Local Civil Rule 7.1(c)(1),
Plaintiff’s response to Defendants’ Motion for Summary Judgment was due on or before April
24, 2015. Plaintiff neither responded to Defendants’ Motion for Summary Judgment nor moved
for an extension of time to so respond before April 24, 2015. On May 1, 2015, Defendants filed
their Application for Order of Dismissal, pointing out Plaintiff’s failure to respond and
requesting that this Court grant their Motion for Summary Judgment. (Docket No. 33).
On May 4, 2015, Plaintiff moved for an extension of time to respond to Defendants’
Motion for Summary Judgment, contending that “counsel was ill for a week and needs one week
from the date of this motion to file the response.” (Docket No. 34, p. 2). Plaintiff’s counsel’s
supporting affidavit acknowledges that the “response to Defendants’ Summary Judgment was
due a week ago” before stating:
That as a result of Affiant’s illness the week of the 20th of April
affiant is just now finalizing the response.
If granted a one week extension from the 4th of May affiant will have
the response filed on or before that date.
(Docket No. 35, ¶¶ 3-4). Plaintiff’s counsel provides no additional justification for extending the
time for responding to Defendants’ Motion for Summary Judgment.
On May 6, 2015, Defendants opposed Plaintiffs’ request. (Docket No. 36). On May 8,
Plaintiff responded to Defendants’ opposition and also filed a response to Defendants’ Motion
for Summary Judgment. (Docket Nos. 37-39).1
1

The undersigned has not reviewed Plaintiff’s response to Defendants’ Motion for
Summary Judgment in light of this Memorandum Decision and Order. Accordingly, Plaintiff’s
response to Defendants’ Motion for Summary Judgment should be sealed unless otherwise
ordered.
MEMORANDUM DECISION AND ORDER - 2

DISCUSSION
Typically, Local Civil Rule 7.1(c)(1) requires a response to a motion for summary
judgment, along with any supporting materials, to be filed 21 days after service of the motion on
the non-moving party. It is undisputed that Plaintiff’s response to Defendants’ Motion for
Summary Judgment was due on or before April 24, 2015. FRCP 6(b) allows for the extension of
such a deadline under certain conditions:
When an act may or must be done within a specified time, the court
may, for good cause, extend the time:
(A)

with or without motion or notice of the court acts, or
if a request is made, before the original time or its
extension expires; or

(B)

on motion made after the time has expired if the party
failed to act because of excusable neglect.

Fed. R. Civ. P. 6(b)(1)(A-B).2 Here, Plaintiff moved for an extension of time to respond to
Defendants’ Motion for Summary Judgment after the already-imposed deadline for doing so; as
such, Plaintiff must show not only good cause for more time, but also that his tardy Motion for
Additional Time to Respond to Defendants’ Motion for Summary Judgment was the result of
excusable neglect. See Burch v. Smathers, 1990 F. Supp. 2d 1063, 1080 (D. Idaho 2014). In
other words, part of the good cause showing generally required by this Court includes an
2

There appears to be some confusion concerning the appropriate standard for
considering Plaintiff’s request for addition time to respond to Defendants’ Motion for Summary
Judgment. Initially, Plaintiff did not cite to any standard by which to consider his underlying
request. Then, Defendants’ opposition cites to Idaho Rule of Civil Procedure 16(i), before
highlighting FRCP 16(b)’s “good cause” requirement dealing with the modification of
scheduling orders (only mentioning in passing FRCP 6(b) when discussing a recent decision
from this District). Finally, Plaintiff’s reply briefing follows Defendants’ lead and speaks to
“good cause” and modifying terms of a scheduling order. To be clear, the instant dispute speaks
to a deadline contained not in any scheduling order, but a deadline prescribed by the Local Civil
Rules. Thus, FRCP 6(b) governs the issue now before the Court.
MEMORANDUM DECISION AND ORDER - 3

explanation for why a timely request for additional time could not have been made before the
expiration of time – i.e., excusable neglect. Plaintiff has not met this burden.
Whether neglect is excusable requires consideration of four factors: “(1) the danger of
prejudice to the opposing party; (2) the length of delay and its potential impact on the
proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.”
Bateman v. United States Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2001) (citing Pioneer
Inv. Servs. Co. v. Brunswick Associates P’ship, 507 U.S. 380, 395 (1993)).
The first two factors, by themselves, do not weigh heavily in favor of denying Plaintiff’s
request for more time. The only real prejudice to Defendants is the prejudice of being deprived
of better odds at prevailing on summary judgment. However, that is not a sufficient basis to
deny Plaintiff’s request. “Prejudice requires greater harm than simply that relief would delay
resolution of the case.” Lemoge v. United States, 587 F.3d 1188, 1196 (9th Cir. 2009); see also
Bateman, 231 F.3d at 1225. Moreover, if granted, Plaintiff’s requested extension would delay
Plaintiff’s opposition to Defendants’ Motion for Summary Judgment by less than three weeks –
hardly a significant impediment to the action’s progression, particularly when considering the
case is less than a year old, no trial date is set, and the dispositive motion deadline is not until
December 2015.
But the Court is more concerned with the other two factors – the reason for the delay and,
relatedly, whether Plaintiff’s counsel acted in good faith. To begin with, all that explains
Plaintiff’s counsel’s apparent inability to address Defendants’ Motion for Summary Judgment is
counsel’s own reference to an “illness” during the week of April 20, 2015. Nothing more. Even
if true, there is no indication of what the specific illness was and, likewise, no explanation for

MEMORANDUM DECISION AND ORDER - 4

how that illness actually prevented counsel from meeting his responsibilities to his client,
opposing counsel, and this Court – that is, to either respond to Defendants’ Motion for Summary
Judgment or prospectively move for an extension of time before the April 24, 2015. That
Plaintiff’s counsel’s “practice of law got backed up” is not enough. (Docket No. 38, p. 2).
Otherwise, every overworked attorney will be justified in missing a deadline.
Separately, despite any claimed illness during the week of April 20, 2015, Plaintiff’s
counsel ignores (1) the preceding two weeks (the weeks of April 6 & 13, 2015, after Defendants
filed their Motion for Summary Judgment) whereby he was not sick and, presumably, able to
work up a response to Defendants’ briefing on time, and (2) the following week (the week of
April 27, 2015) where he could have attempted to proactively address this thorny predicament.
These circumstances suggest that it was only Defendants’ May 1, 2015 Application for Order of
Dismissal that prompted Plaintiff’s counsel to try and justify after-the-fact why he hadn’t yet
responded to Defendants’ Motion for Summary Judgment. As a result, the reason for the delay
and Plaintiff’s counsel’s corresponding conduct cut against Plaintiff’s request for more time.
Understanding the issue to be one within the Court’s discretion, the undersigned
considers the latter two factors to be most significant in this instance. See Manzano v. California
Dept. of Motor Vehicles, 467 Fec. Appx. 683, 685 (9th Cir. 2012) (recognizing abuse of
discretion standard as to FRCP 6(b)). Although a medical emergency could represent good
cause and excusable neglect, there is absolutely no evidence in the record demonstrating that
Plaintiff’s counsel’s illness was of such a magnitude that he could not, at the very least, request
an extension of time before the April 24, 2015 deadline came and went – saying nothing of the
work (or lack of work) performed leading up to the week of April 20, 2015. Therefore, whatever

MEMORANDUM DECISION AND ORDER - 5

neglect existed by way of Plaintiff’s counsel’s failure to timely respond to Defendant’s Motion
for Summary Judgment, it cannot be said to be excusable under FRCP 6(b) – an exacting
standard that is much more stringent than the demonstration of “good cause” that is required
where an extension of time is timely sought. This is a hard line, to be sure. But tasked with
supervising the pretrial phase of litigation, findings of excusable neglect should be reserved for
extraordinary cases presented by unique or extraordinary circumstances. Simply put, the record
does not support such a finding here. Plaintiff’s Motion for Additional Time to Respond to
Defendants’ Motion for Summary Judgment (Docket No. 34) is DENIED.
This does not mean, ipso facto, that Defendants’ Motion for Summary Judgment should
be granted outright. In this respect, Local Civil Rule 7.1(e)(2) provides:
In motions brought under Federal Rule of Civil Procedure 56, if the
non-moving party fails to timely file any response documents
required to be filed, such failure shall not be deemed a consent to the
granting of said motion by the court. However, if a party fails to
properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Federal Rule of Civil
Procedure 56(c) or Local Rule 7.1(b)(1) or (c)(2), the court
nonetheless may consider the uncontested material facts as
undisputed for purposes of consideration of the motion, and the Court
may grant summary judgment if the motion and supporting materials
– including the facts considered undisputed – show that the moving
party is entitled to the granting of the motion.
Dist. Idaho Loc. Civ. R. 7.1(e)(2). With this in mind, the Court will set a hearing on Defendants’
Motion for Summary Judgment and, after oral argument, consider its merits in due course. Until
then, Defendants’ Application for Order of Dismissal (Docket No. 33) is DENIED.
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MEMORANDUM DECISION AND ORDER - 6

ORDER
Based on the foregoing, IT IS HEREBY ORDERED THAT:
1.

Plaintiff’s Motion for Additional Time to Respond to Defendants’ Motion for

Summary Judgment (Docket No. 34) is DENIED. Plaintiff’s responses to Defendants’ Motion
for Summary Judgment (Docket Nos. 37 & 39) shall be sealed unless otherwise ordered by the
Court.
2.

Defendants’ Application for Order of Dismissal (Docket No. 33) is DENIED. By

future order, the Court will set for hearing Defendants’ Motion for Summary Judgment.
DATED: May 11, 2015

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 7