Bank of America, N.A. v. Mesa Verde Homeowners Association et al

Filing 75

ORDER granting SFR's ECF No. 58 Motion for Leave to File an Opposition; granting in part and denying in part SFR's ECF No. 57 Motion for Reconsideration; denying as moot Plaintiff's ECF No. 59 Motion for Attorney Fees. Signed by Magistrate Judge Nancy J. Koppe on 1/17/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 11 12 13 14 15 BANK OF AMERICA, N.A., ) ) Plaintiff(s), ) ) vs. ) ) MESA VERDE HOMEOWNERS ) ASSOCIATION, et al., ) ) Defendant(s). ) __________________________________________) Case No. 2:16-cv-00498-JCM-NJK ORDER (Docket Nos. 57, 58, 59) 16 Pending before the Court are SFR’s motion to reconsider the prior order granting Plaintiff’s 17 motion for protective order and for sanctions as unopposed, and motion for leave to file an untimely 18 opposition brief. Docket Nos. 57, 58. Plaintiff filed a response in opposition, and SFR filed a reply. 19 Docket Nos. 62, 65. The Court finds the motions properly resolved without a hearing. See Local Rule 20 78-1. For the reasons discussed more fully below, the motion for leave to file an untimely opposition 21 brief is GRANTED, and the motion to reconsider is GRANTED in part and DENIED in part. In 22 addition, Plaintiff’s motion for calculation of attorneys’ fees at Docket No. 59 is DENIED as moot. 23 I. SFR’S FAILURE TO TIMELY FILE RESPONSE 24 On October 7, 2016, Plaintiff filed its motion for protective order. Docket No. 50. The deadline 25 for SFR to file its opposition brief was October 24, 2016. See Local Rule 7-2(b); see also Fed. R. Civ. 26 27 28 1 P. 6(d) (previous version).1 SFR did not meet that deadline. On October 26, 2016, the Court granted 2 Plaintiff’s motion as unopposed. See Docket No. 56. 3 To determine whether to allow for the untimely filing of the opposition, the Court looks to 4 whether excusable neglect has been established in failing to comply with the already-established 5 deadline. In doing so, the Court considers: (1) the reason for the delay and whether it was in the 6 reasonable control of the moving party, (2) whether the moving party acted in good faith, (3) the length 7 of the delay and its potential impact on the proceedings, and (4) the danger of prejudice to the 8 nonmoving party. See Pioneer Inv. Servs. v. Brunswick Assocs., 507 U.S. 380, 395 (1993). The reason 9 for SFR’s failure to comply with the local rules is not a compelling one, by any stretch.2 Nonetheless, 10 the Court finds that balancing of the equitable factors tilts in favor of permitting the late filing of an 11 opposition brief. As such, the motion for leave to file an opposition will be GRANTED. 12 SFR has not actually prepared and submitted a proposed responsive brief in this case. Instead, 13 it has referenced the responsive brief that it filed in Bank of America v. Desert Pine Villas Homeowners 14 Association, Case No. 2:16-cv-00725-JCM-NJK. See Docket No. 65 at 5. SFR represents that the 15 issues raised in the motion for protective order in this case are identical to those at issue in the motion 16 filed in the Desert Pine case. See id. As such, the Court will deem that responsive brief as having also 17 been filed in this case. 18 II. RECONSIDERATION OF ORDER GRANTING MOTION FOR PROTECTIVE ORDER 19 The Court has issued an order resolving the motion for protective order in the Desert Pine case 20 and hereby incorporates that order herein to conclude that the motion for protective order shall be 21 granted, but that an award of attorneys’ fees is not appropriate. 22 23 1 24 25 26 27 28 Effective December 1, 2016, the Federal Rules were amended to omit the provision allowing three additional days when service is completed by electronic means, including the Court’s CM/ECF system. See Fed. R. Civ. P. 6(d). 2 The reason provided is nonsensical, as counsel asserts that she miscalculated the deadline based on the date of issuance of the briefing schedule order on October 10, 2016. Docket No. 58, Ebron Decl. ¶ 6. There is no order dated or issued on October 10, 2016, and the referenced minute order was issued one hour after Plaintiff’s motion was filed, at 4:13 p.m. on October 7, 2016, Docket No. 51. 2 1 The Court therefore GRANTS the motion for reconsideration of its order at Docket No. 56 in 2 this case to the extent that order is inconsistent with this ruling, and it is otherwise DENIED. 3 III. CONCLUSION 4 For the reasons discussed above, SFR’s motion for leave to file an opposition (Docket No. 58) 5 is GRANTED, SFR’s motion for reconsideration (Docket No. 57) is GRANTED in part and DENIED 6 in part, and Plaintiff’s motion for calculation of attorneys’ fees (Docket No. 59) is DENIED as moot. 7 IT IS SO ORDERED. 8 DATED: January 17, 2017 9 10 ______________________________________ NANCY J. KOPPE United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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