Downs v. Grusman et al

Filing 93

ORDER granting 92 Motion to Extend Deadline. Proposed Joint Pretrial Order due by 6/20/2011. Signed by Magistrate Judge Lawrence R. Leavitt on 5/23/11. (Copies have been distributed pursuant to the NEF - ECS)

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CATHERINE CORTEZ MASTO
Nevada Attorney General
DENISE S. BALBONI
Deputy Attorney General
Nevada State Bar No. 10507
Public Safety Division
Office of the Attorney General
555 E. Washington Avenue, Suite 3900
Las Vegas, NV 89101
Telephone: [phone]
Fax: [phone]
Attorneys for Defendants
UNTED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Case No. 2:07-cv-000116-JCM-LRL
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Plaintiff,
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v.
) JOINT MOTION FOR EXTENSION OF TIME
TO FILE JOINT PRETRIAL ORDER
DAVID GRUSMAN, HAROLD WICKHAM, )
(SECOND REQUEST)
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GLEN WHORTEN, AND THE STATE OF
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NEVADA,
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Defendants.
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___________________________________
JIMMY EARL DOWNS,

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JIMMY EARL DOWNS, pro se, and Defendants DAVID GRUSMAN, HAROLD WICKHAM,

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and THE STATE OF NEVADA (hereinafter “Defendants”), by and through legal counsel,

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CATHERINE CORTEZ MASTO, Nevada Attorney General, and DENISE S. BALBONI, Deputy

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Attorney General, hereby submit a second request for a 30-day extension of time in which to file the

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Joint Pre-Trial Order. The Joint Pre-Trial Order is currently due May 20, 2011.

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DATED this 19th day of May, 2011.
Respectfully submitted,
CATHERINE CORTEZ MASTO
Attorney General

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By: __/s/ Denise S. Balboni____
DENISE S. BALBONI
Deputy Attorney General
Public Safety Division

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MEMORANDUM OF POINTS AND AUTHORITIES
I.

Procedural History

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Plaintiff commenced the instant action via a Civil Rights Complaint filed December 29, 2006, in

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the Eighth Judicial District Court. (Dkt. #1). Defendants removed the action on January 29, 2007. (Dkt.

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#1). On October 30, 2008, this Court executed a Scheduling Order which, among other things, set the

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deadline for the filing of a Joint Pre-Trial Order as five days after the denial of the parties’ motions for

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summary judgment. (Dkt. #33). After a number of motions and stipulations between the parties to

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extend discovery, discovery ended on December 28, 2009. (Dkt. #51). On January 28, 2010, Plaintiff’s

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motion for leave to file an Amended Complaint was granted; Plaintiff’s Amended Complaint included

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four additional defendants and five new causes of action (Dkt. # 49). Plaintiff has not effectuated

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service on any of the newly-named defendants.

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Defendants filed a Motion to Dismiss or in the Alternative for Summary Judgment of Plaintiff’s

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Amended Complaint on March 9, 2010. (Dkt. #65). Plaintiff opposed and filed a Counter Motion for

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Summary Judgment. (Dkt. # 71). Defendants filed an opposition thereto (Dkt. # 78) and Plaintiff filed a

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reply in support. (Dkt. # 81). This Court issued an Order on January 27, 2011, denying both motions in

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full. (Dkt. #82). Plaintiff filed a Motion for Reconsideration on February 16, 2011, (Dkt. # 83)

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Defendants filed an opposition thereto (Dkt. #84), and Plaintiff filed a reply in support (Dkt. #85). This

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Court denied Plaintiff’s Motion for Reconsideration in full on March 28, 2011 (Dkt. #86). Plaintiff then

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filed a Motion to Amend or Make Additional Findings of Fact, essentially seeking reconsideration of

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the March 28, 2011, order denying Plaintiff’s Motion for Reconsideration. (Dkt. # 88). Defendants

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opposed (Dkt. # 90), and that motion is presently pending.

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On April 11, 2011, Defendants moved for the first 45-day extension of time to file a Joint Pre-

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Trial Order. (Dkt. # 89). The Court granted the motion and ordered the Joint Pre-Trial Order due May

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20, 2011.1

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...

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In fact, the Order signed by the Court on April 8, 2011, did not state a deadline for the filing of the Joint Pre-Trial
Order, but 45 days from the signature date is May 23, 2011. The docket entry for the Order stated that the Joint Pre-Trial
Order was due May 20, 2011. Out of an abundance of caution, the parties state here that the deadline for the filing of the
Joint Pre-Trial Order is May 20, 2011, but it can be construed to be May 23, 2011.

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II.

Legal Argument
Fed. R. Civ. Proc. 6(b)(1) provides, in pertinent part:
When by these rules or by notice given thereunder or by the order of
court an act is required or allowed to be done at or within a specified
time, the court for cause shown may at any time in its discretion (1) with
or without motion or notice order the period enlarged if request therefore
is made before the expiration of the period originally prescribed or as
extended by a previous order.

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FED. R. CIV. P. 6(b)(1) allows a party to move for and the court to grant an enlargement of time.
Judges have wide discretion in managing their dockets. See Hernandez v. City of El Monte, 138 F.3d
393, 399 (9th Cir. 1998); see also FED. R. CIV. P. 6(b) (advisory committee note, 1946) (“Rule 6(b) is a
rule of general application giving wide discretion to the court to enlarge these time limits or revive them
after they have expired…”). Pursuant to LR 6-1, “A request [to extend time] made after the expiration
of the specified period shall not be granted unless the moving party, attorney, or other person
demonstrates that the failure to act was the result of excusable neglect.”
The parties jointly move for a second, 30-day extension of time to file their Joint Pre-Trial Order in
this case. Today, Defendants’ counsel contacted Plaintiff via telephone to ask for his half of the
information to be included in the Joint Pre-Trial Order, and Plaintiff informed Defendants’ counsel that he
was unaware of his obligation under LR 16-3(c) to initiate the creation of the Joint Pre-Trial Order and he
did not know what type of information the Order was supposed to contain; accordingly, Plaintiff stated that
he had done no preparation of any information to be included in the Order. Declaration of Denise S.
Balboni, Esq. attached hereto as Exhibit A. Plaintiff further informed Defendants’ counsel that he was
under the impression that the Amended Complaint was still waiting for screening and thus that the
submission of a Joint Pre-Trial Order was premature. Exhibit A. Finally, Plaintiff also informed
Defendants’ counsel that he did not believe the parties were ready to go to trial since none of the 4 newlynamed parties in his Amended Complaint had been served. Exhibit A. Defendants’ counsel informed
Plaintiff that he had to seek separate relief regarding those issues, and Plaintiff stated that he intended to.
Exhibit A. The parties respectfully submit to this Court that Plaintiff’s misunderstanding of his obligations
under the Joint Pre-Trial Order constitute good cause for this second requested extension of time. Plaintiff
was not able to sign this motion because the unit in which he is presently housed at Southern Desert
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Correctional Center was scheduled to be locked down at 3:15 p.m. on May 19, 2011, and this document

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was not prepared in enough time before then. Plaintiff expressly authorized Defendants’ counsel to

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represent that he is a joint participant in this motion and agrees with its contents. Exhibit A.

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The parties respectfully request a 30-day extension to allow them to prepare and file their Joint
Pretrial Order.
DATED this 19th day of May, 2011.

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Respectfully submitted,
CATHERINE CORTEZ MASTO
Attorney General
By:

/s/ Denise S. Balboni____________
DENISE S. BALBONI
Deputy Attorney General
Nevada State Bar No. 10507
Attorneys for Defendants

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ORDER
June 20, 2011
IT IS SO ORDERED. The Joint Pre-Trial Order is due ________________________________.

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___________________________________
United States Magistrate Judge
5-23-11

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Case 2:07-cv-00116-JCM-LRL Document 92

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Filed 05/19/11 Page 5 of 5

CERTIFICATE OF SERVICE
I, Kimie Beverly, hereby certify that I am an employee of the Office of the Attorney General
and that on the 20th day of May, 2011, I served the foregoing JOINT MOTION FOR EXTENSION
OF TIME TO FILE JOINT PRETRIAL ORDER (SECOND REQUEST) by causing a true and
correct copy thereof to be filed with the Clerk of the Court using the CM/ECF system and by causing a
true and correct copy thereof to be delivered to the Department of General Services, for mailing at Las
Vegas, Nevada, addressed to the following:
JIMMY EARL DOWNS #63678
SOUTHERN DESERT CORRECTIONAL CENTER
PO BOX 208
INDIAN SPRINGS NV 89070

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/s/ Kimie Beverly_______________
______
An employee of the Office of the Attorney General

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