Foley v. Graham et al

Filing 53

ORDER. IT IS ORDERED that 51 Foley's motion to extend the deadline to respond to the defendants' motion to dismiss is GRANTED. Foley must file his response to that 47 motion by 4/3/2020, or the motion will be granted as unopposed. Signed by Judge Jennifer A. Dorsey on 3/13/2020. (Copies have been distributed pursuant to the NEF - JQC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

3 Michael Foley,

Case No.: 2:16-cv-01871-JAD-VCF

Plaintiff

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Order Granting Motion to Extend Time
5 v.
[ECF No. 51]
6 Kenneth Graham, et al.,
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Defendants
After missing his deadline to oppose defendants’ motion to dismiss, 1 pro se plaintiff

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9 Michael Foley now moves to extend that deadline so he can file an opposition. 2 Defendants
10 oppose that request and ask the court to grant their motion to dismiss as uncontested. 3
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When a party moves to extend a deadline after that deadline has already passed, as Foley

12 does here, the movant must “demonstrate[] that the failure to file the motion [to extend the
13 deadline] before the deadline expired was the result of excusable neglect.” 4 “Excusable neglect
14 ‘encompasses situations in which the failure to comply with a filing deadline is attributable to
15 negligence,’ and includes ‘omissions caused by carelessness.’” 5 “The determination of whether
16 neglect is excusable ‘is at bottom an equitable one, taking account of all relevant circumstances
17 surrounding the party's omission.’”6 “To determine when neglect is excusable, we conduct the
18 equitable analysis specified in Pioneer [Investment Services Company v. Brunswick Associates
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ECF No. 47.

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ECF No. 51.

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ECF No. 52.

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L.R. IA 6-1(a).

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Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009) (quoting Pioneer Inv. Servs. Co.
23 v. Brunswick Assocs. Ltd., 507 U.S. 380, 394–95 (1993)),
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Lemoge, 587 F.3d at 1192 (quoting Pioneer, 507 U.S. at 395).

1 Ltd.] by examining ‘at least four factors: (1) the danger of prejudice to the opposing party; (2) the
2 length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and
3 (4) whether the movant acted in good faith.’”7
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Foley states that his failure to timely respond was the result of excusable neglect because

5 he was in the middle of moving out of his home and was only “recently . . . able to use
6 his computer since having completed his move.” Weighing the Pioneer factors, I find that Foley
7 has demonstrated excusable neglect for failing to move to extend the deadline before it expired.
8 So I grant his motion and extend his deadline to respond to the defendants’ motion to dismiss to
9 April 3, 2020.
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IT IS THEREFORE ORDERED that Foley’s motion to extend the deadline to respond to

11 the defendants’ motion to dismiss [ECF No. 51] is GRANTED. Foley must file his response
12 to that motion [ECF No. 47] by April 3, 2020, or the motion will be granted as unopposed.
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Dated: March 13, 2020

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_________________________________
U.S. District Judge Jennifer A. Dorsey

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Id. (quoting Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223–24 (9th Cir. 2000)).
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