Patel v. Smith

Filing 86

ORDER Granting 85 Motion to Extend. Denying as moot 84 Motion to Extend Time. Dispositive Motions due by 4/9/2014. Signed by Magistrate Judge Carl W. Hoffman on 4/4/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DEBRA JENE PATEL-JULSON,

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Plaintiff,
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vs.
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PAUL SMITH LAS VEGAS, INC., et al.,
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Defendants.
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__________________________________________)

Case No. 2:12-cv-01023-APG-CWH
ORDER

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This matter is before the Court on Defendant’s Emergency Motion to Extend (#85), filed April 3,
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2014. Citing what it terms a typographical error in the scheduling plan, Defendant requests that the
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dispositive motions deadline be extended from April 4, 2014 to April 9, 2014.
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Defendant first requested this relief in the form of a stipulation (#77), which was denied without
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prejudice for failure to comply with Local Rule 26-4. See Order (#80). Two days after the Court entered
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its order on the stipulation, Plaintiff filed what is identified on the docket as a motion to extend time
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regarding the scheduling order. (#84). The motion (#84) appears to have been incorrectly styled as a
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stipulation, but subsequently restyled by the Clerk’s office as a motion. By way of her motion (#84),
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Plaintiff appears to revoke her consent to extend the deadline and generally oppose an extension of the
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deadline in question because it would not benefit her to agree to the extension.
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The undersigned has been patient with both parties as they have attempted to finalize discovery
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in this matter. The Court is mindful that Plaintiff is proceeding pro se and is sensitive to its obligation to
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broadly construe filing by pro se litigants and give such plaintiffs “the benefit of any doubt.” E.g. Bretz
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v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (citation omitted). Nevertheless, even pro se
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litigants must comply with the Federal Rules of Civil Procedure. E.g. King v. Atiyeh, 814 F.2d 565, 567

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(9th Cir. 1987); see also Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986) (“pro se litigants in the

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ordinary civil case should not be treated more favorable than parties with attorneys of record”); Carter v.

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Comm’r of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986) (pro se litigants expected to abide by

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the rules of the court in which litigation proceeds). The Court appreciates that Plaintiff may not want an

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extension she does not view as beneficial, but the standard for the requested extension is whether

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Defendant has shown excusable neglect for seeking the extension at this late stage in the discovery

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period. Because Defendant’s motion (#85) is untimely under both Fed. R. Civ. P. 6(b)(1)(B) and Local

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Rule 26-4, the Court considers it under the excusable neglect standard. In evaluating excusable neglect,

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the court considers: (1) the reason for the delay and whether it was in the reasonable control of the

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moving party, (2) whether the moving party acted in good faith, (3) the length of the delay and its

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potential impact on the proceedings, and (4) the danger of prejudice to the nonmoving party. See Pioneer

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Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); see

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also Comm. for Idaho's High Desert, Inc. v. Yost, 92 F.3d 814, 825 n. 4 (9th Cir.1996).

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The delay in this matter was the result of a drafting error in the unilateral discovery plan and

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scheduling order drafted and submitted by Defendant. (#39). On October 23, 2013, after hearing, the

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proposed plan was approved without objection. The alleged error was not discovered until March 28,

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2014 during the parties’ meet and confer on other discovery matters. The error was brought to Plaintiff’s

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attention, and she stipulated to extend the deadline. She has now recanted her agreement and asks that

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no extension be granted. It is clear that the dispositive motions deadline of April 4, 2014 set forth in the

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discovery plan was error. The proper deadline would have been 30 days after the close of discovery, or

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in this case April 9, 2014.

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The Court further finds that Defendant has acted in good faith. Immediately upon discovery of

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the error, counsel brought it to Plaintiff’s attention and secured a stipulated extension. It makes little

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difference that the stipulation was ultimately denied as counsel acted in good faith upon discovery of the

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error. The Court further finds that the length of delay and potential impact on the proceedings in

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permitting a five-day extension of the dispositive motions deadline will be minimal. The extension will

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not prejudice Plaintiff. She will have every opportunity to respond to any dispositive motion.

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Based on the foregoing and good cause appearing, the Court finds that the failure to move for an
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extension in a timely manner was the result of excusable neglect and the limited five-day extension of

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the dispositive motions deadline is justified.

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IT IS HEREBY ORDERED that Defendant’s Emergency Motion to Extend (#85) is granted.

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IT IS FURTHER ORDERED that the Scheduling Order and Discovery Plan is modified to

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reflect that the Dispositive Motions Deadline is April 9, 2014.

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IT IS FURTHER ORDERED that Plaintiff’s Motion (#84) is denied as moot.

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DATED: April 4, 2014.

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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