Louisiana Municipal Police Employees Retirement System et al v. Adelson et al
Filing
50
ORDER Granting 49 Notice of Unopposed Motion for 1-Day Extension of Time to File Reply to 33 MOTION to Consolidate Cases Related Derivative Actions And To Appoint Lead Plaintiff And Lead Liaison Counsel filed by Louisiana Municipal Police Employees Retirement System Signed by Judge Roger L. Hunt on 7/7/11. (Copies have been distributed pursuant to the NEF - EDS)
Case 2:11-cv-00595-RLH -GWF Document 49-1
Filed 06/30/11 Page 1 of 9
Curtis B. Coulter (Nevada Bar No. 3034)
LAW OFFICES OF CURTIS B. COULTER, P.C.
403 Hill Street, Reno, Nevada 89501
Telephone: (775) 324-3380
Facsimile: (775) 324-3381
ccoulter@coulterlaw.net
Counsel for Plaintiff Louisiana Municipal
Police Employees Retirement System and Proposed
Liaison Counsel
(Additional counsel listed on signature page)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
NASSER MORADI, RICHARD BUCKMAN,
DOUGLAS TOMLINSON, and MATT
ABBEDUTO, derivatively on behalf of LAS
VEGAS SANDS CORP.,
Case No. 2:11-cv-00490-GMN-(RJJ)
Action Filed: April 1, 2011
Plaintiffs,
v.
SHELDON GARY ADELSON, MICHAEL A.
LEVEN, CHARLES D. FORMAN, IRWIN A.
SIEGEL, IRWIN CHAFETZ, GEORGE P.
KOO, JEFFREY H. SCHWARTZ, JASON N.
ADER,
Defendants,
and
LAS VEGAS SANDS CORP.,
Nominal Defendant.
(Caption continued on following page)
PLAINTIFF LOUISIANA MUNICIPAL POLICE EMPLOYEES RETIREMENT
SYSTEM’S UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE ITS REPLY
IN FURTHER SUPPORT OF ITS MOTION TO CONSOLIDATE AND TO APPOINT
LEAD PLAINTIFF AND LEAD AND LIAISON COUNSEL AND MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT THEREOF (FIRST REQUEST)
Case 2:11-cv-00595-RLH -GWF Document 49-1
LOUISIANA MUNICIPAL POLICE
EMPLOYEES RETIREMENT SYSTEM,
derivatively on behalf of LAS VEGAS
SANDS CORP.,
Filed 06/30/11 Page 2 of 9
Case No. 2:11-cv-00595-RLH-(GWF)
Action Filed: April 18, 2011
Plaintiff,
v.
SHELDON G. ADELSON, MICHAEL A.
LEVEN, IRWIN CHAFETZ, CHARLES D.
FORMAN, JEFFREY H. SCHWARTZ,
IRWIN A. SIEGEL, JASON N. ADER,
GEORGE P. KOO, WING T. CHAO,
Defendants,
and
LAS VEGAS SANDS CORP.,
Nominal Defendant.
JOHN ZAREMBA, derivatively on behalf of
LAS VEGAS SANDS CORP.,
Case 2:11-cv-00636-RLH-(GWF)
Action Filed: April 22, 2011
Plaintiff,
v.
SHELDON G. ADELSON, MICHAEL A.
LEVEN, IRWIN A. SIEGEL, JEFFREY H.
SCHWARTZ, JASON N. ADER, CHARLES
D. FORMAN, IRWIN CHAFETZ, GEORGE
P. KOO, and WING T. CHAO,
Defendants,
and
LAS VEGAS SANDS CORP.,
Nominal Defendant.
Case 2:11-cv-00595-RLH -GWF Document 49-1
Filed 06/30/11 Page 3 of 9
Plaintiff Louisiana Municipal Police Employees Retirement System (“LAMPERS”)
hereby moves this Court pursuant to Local Rule 6-1(b) for a one-day extension of time for
LAMPERS to file its Reply in further support of LAMPERS‟ Motion to Consolidate Related
Derivative Actions and to Appoint Lead Plaintiff and Lead and Liaison Counsel (the “Reply”).
LAMPERS filed its Motion to Consolidate Related Derivative Actions and to Appoint Lead
Plaintiff and Lead and Liaison Counsel on May 19, 2011.
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
On May 19, 2011, LAMPERS filed its Motion to Consolidate Related Actions and to
Appoint Lead Plaintiff and Lead and Liaison Counsel in the action captioned Louisiana
Municipal Police Employees Retirement System v. Adelson, et al., No. 2:11-cv-00595-RLH(GWF) (the “LAMPERS Action”). The following day, LAMPERS filed a Notice of that motion
(ECF No. 16) with this Court in the action captioned Moradi, et al. v. Adelson, et al., No. 2:11cv-00490-GMN-(RJJ) (the “Moradi Action”).1 On June 6, 2011 LAMPERS timely filed its
opposition brief to the Moradi Plaintiffs‟ Motion for Consolidation, and Appointment of Lead
Counsel and Liaison Counsel (ECF No. 25), and the Moradi Plaintiffs filed their opposition brief
to LAMPERS‟ motion (ECF No. 29). On June 16, 2011, the Moradi Plaintiffs filed a reply brief
in further support of their motion, and on June 17, 2011, LAMPERS filed its Reply in further
support of its motion.
Thereafter, on June 27, 2011, the Moradi Plaintiffs filed a Motion to Strike LAMPERS‟
Untimely Filings (ECF No. 37), indicating that pursuant to Local Rule 7-2(c) LAMPERS‟ Reply
was due on June 16, 2011. Upon receipt of that motion, counsel for LAMPERS first realized
1
Unless noted otherwise, all ECF document numbers provided herein refer to the document numbers assigned in the
Moradi Action.
Case 2:11-cv-00595-RLH -GWF Document 49-1
Filed 06/30/11 Page 4 of 9
that it had incorrectly calendared the Reply deadline as June 17, 2011, instead of June 16. As set
out in the Declaration of Justin O. Reliford filed herewith, this mistake resulted from counsel‟s
use of the Local Rules posted on the Nevada District Court‟s website, which do not reflect the
2009 amendments to those rules which shortened the time for reply briefs from eleven days to
seven days. See Declaration of Justin O. Reliford at ¶¶ 3-4. As set forth below, the Ninth
Circuit and this District Court have routinely found that such errors constitute “excusable
neglect” justifying an extension of a filing deadline. Furthermore, counsel for the Moradi
Plaintiffs do not oppose LAMPERS‟ instant request. Accordingly, LAMPERS respectfully
requests that the Court grant it a one-day extension of its deadline to file its Reply, such that the
Court will consider the Reply brief (and supporting documents) already on file as timely filed.
II.
ARGUMENT
It is within this Court‟s discretion pursuant to Local Rule 6-1(b) to extend the time period
for LAMPERS to file its Reply due to the “excusable neglect” that resulted in the delayed filing.
See LR 6-1(b) (“A request 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.”). In evaluating such a request, this Court must consider: (1) the
danger of prejudice to the Moradi Plaintiffs; (2) the length of LAMPERS‟ delay and its potential
impact on the proceedings; (3) the reason for the delay, and (4) whether LAMPERS‟ conduct
was in good faith. See Ahanchian v. Xenon Pictures, 624 F.3d 1253, 1261-62 (9th Cir. 2010)
(applying the foregoing balancing test to hold that a district court erred in refusing to accept a
filing that was three days late due to a calendaring error); Pincay v. Andrews, 389 F.3d 853, 855
(9th Cir. 2004) (holding that a delay in filing caused by counsel‟s mistake when calendaring the
filing deadline constituted excusable neglect and that the district court erred in failing to consider
-2-
Case 2:11-cv-00595-RLH -GWF Document 49-1
Filed 06/30/11 Page 5 of 9
the foregoing factors before denying the party‟s requested extension).2 When considered, these
factors strongly support granting LAMPERS‟ request to extend the time to file its Reply by one
day.
First, there is no danger of prejudice to the Moradi Plaintiffs by granting LAMPERS a
one-day extension of time to file its Reply.
Indeed, the Moradi Plaintiffs do not oppose
LAMPERS‟ request.3 See Declaration of Justin O. Reliford at ¶8. In any event, because the
matters discussed in LAMPERS‟ Reply will be addressed by the Court when it rules on
LAMPERS‟ and the Moradi Plaintiffs‟ competing motions for appointment of a leadership
structure, it would not serve the Ninth Circuit‟s stated preference for adjudicating issues on the
merits or the interests of judicial economy to strike or otherwise disallow the filing. See Molfetta
v. Time Ins. Co., No. 2:07-cv-01240-JCM-LRL, 2010 WL 2041703, at *1 (D. Nev. May 17,
2010) (“Due to the judicial preference of adjudicating claims on the merits, the court has
exercised its discretion and considered Plaintiff‟s untimely opposition, and all arguments
presented therein.”); cf. Dayton Valley Investors, LLC v. Union Pac. RR Co., 664 F. Supp. 2d
1174, 1179 (D. Nev. 2009) (finding good cause for allowing a belated summary judgment
motion where the Court would “eventually address” the issues raised in that motion).
Second, LAMPERS has requested only a one-day extension of time. Courts routinely
hold that much longer delays do not preclude a finding of “excusable neglect.” See Pincay, 389
2
These factors, called the “Pioneer factors,” were established by the Supreme Court in Pioneer Inv. Servs. Cop. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993). “Although the Court in Pioneer considered the meaning of
„excusable neglect‟ under Federal Rule of Bankruptcy Procedure 905(b)(1), the Court also reviewed the various
contexts in which the federal rules of procedure use the term and indicated that the same test applies in all contexts.”
Kendall v. Nevada, No. 3:08-cv-521-LRH-VPC, 2010 WL 276679, at *1 (D. Nev. Jan. 15, 2010) (finding excusable
neglect for a two-day delay in filing an opposition to a dispositive motion where counsel erred in calculating the
response deadline, but there was no indication of bad faith and little risk of prejudice to the other party), rev’d on
other grounds, Kendall v. Nevada, No. 10-15223, 2011 WL 1979599 (9th Cir. 2011).
3
As the Moradi Plaintiffs are the only parties that timely opposed LAMPERS‟ motion and the only parties to move
to strike LAMPERS‟ filing, no other party to the related derivative actions could claim any prejudice.
-3-
Case 2:11-cv-00595-RLH -GWF Document 49-1
Filed 06/30/11 Page 6 of 9
F.3d at 855 (holding that a 24-day delay in filing a notice of appeal was “excusable neglect”).
This is especially true where, as here, the delay will have no effect on the timing of the ultimate
resolution of the matter. See Ahanachian, 624 F.3d at 1262 (“the length of delay was a mere
three days; filing the opposition then would not have adversely affected either the summary
judgment hearing date, which was ten days away, or the trial, which was two and a half months
away.”).
As to the third factor, the Ninth Circuit has explained that there are no per se rules
“against late filings attributable to any particular type of negligence.” Pincay, 389 F.3d at 860.
Thus, the Ninth Circuit has expressly held that a counsel‟s calendaring error, which resulted in a
late filing, qualified as “excusable neglect.” See id. Here, as in Pincay, the delay can be traced
to an honest mistake in calendaring the appropriate reply deadline. While LAMPERS‟ counsel
regrets the error, such an error is a justification that the Ninth Circuit recognizes as warranting an
extension of time. See id.; Kendall, 2010 WL 276679, at *1 (allowing an untimely filing where
counsel misread the local rules and filed her brief two days after her reply was due).
Last, it is clear that counsel‟s honest mistake here does not demonstrate any bad faith. As
Circuit Judge Berzon noted in his concurrence in Pincay, “[t]he good faith consideration goes to
the absence of tactical or strategic motives” for the delay. 389 F.3d at 861. As explained herein,
the delay resulted from the honest mistaken belief of counsel that the Reply was not due before
June 17 as a result of counsel‟s use of the local rules from the District Court‟s website which did
not reflect the most recent amendments. Thus, neither LAMPERS nor its counsel sought to gain
any tactical or strategic advantage by filing the Reply one day late. Accordingly, the fourth
Pioneer factor also weighs in favor of granting the extension. See Ahanchian, 624 F.3d at 1262.
-4-
Case 2:11-cv-00595-RLH -GWF Document 49-1
III.
Filed 06/30/11 Page 7 of 9
CONCLUSION
For the foregoing reasons, LAMPERS respectfully requests that the Court grant it a one-
day extension of its deadline to file a Reply in further support of its Motion to Consolidate
Related Derivative Actions and to Appoint Lead Plaintiff and Lead and Liaison Counsel, such
that the Court will consider the Reply brief (and supporting documents) already on file (ECF
Nos. 31-33) as timely filed.
DATED: June 30, 2011
LAW OFFICES OF CURTIS B.
COULTER, P.C.
/s/ Curtis B. Coulter
Curtis B. Coulter
403 Hill Street,
Reno, Nevada 89501
Telephone: (775) 324-3380
Facsimile: (775) 324-3381
ccoulter@coulterlaw.net
Counsel for Plaintiff Louisiana Municipal
Police Employees Retirement System and Proposed
Liaison Counsel
KESSLER TOPAZ MELTZER
& CHECK, LLP
Eric L. Zagar
Robin Winchester
Kristen L. Ross
Justin O. Reliford
280 King of Prussia Road
Radnor, PA 19087
Telephone: (610) 667-7706
Facsimile: (267) 948-2512
ezagar@ktmc.com
rwinchester@ktmc.com
kross@ktmc.com
jreliford@ktmc.com
Counsel for Plaintiff Louisiana Municipal
Police Employees Retirement System and Proposed
Lead Counsel
-5-
Case 2:11-cv-00595-RLH -GWF Document 49-1
Filed 06/30/11 Page 8 of 9
********
IT IS SO ORDERED:
DATED: July 7, 2011
________________________________
UNITED STATES DISTRICT JUDGE
-6-
Case 2:11-cv-00595-RLH -GWF Document 49-1
Filed 06/30/11 Page 9 of 9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on June 30, 2011, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system, and have further provided notice to all counsel of
record in the related derivative actions brought on behalf of Nominal Defendant Las Vegas
Sands Corp. through the same electronic filing system.
/s/ Curtis B. Coulter
Curtis B. Coulter
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