ALPS Property & Casualty Insurance Company v. Gewerter et al

Filing 17

ORDER Granting Defendant's 10 Motion to Extend Time re 1 Complaint. Vincent Hesser's answer due by 9/5/2017. Signed by Magistrate Judge Peggy A. Leen on 9/8/2017. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:17-cv-02057-JCM-PAL Document 10 Filed 08/31/17 Page 1 of 5

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LAW OFFICES OF BYRON THOMAS
BYRON THOMAS
Nevada Bar No. 8906
3275 S. Jones Blvd. Ste. 104
Las Vegas, Nevada 89146
[e-mail]
Phone: [phone]
Facsimile: [phone]
Attorneys for Defendant Mims

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DISTRICT COURT
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CLARK COUNTY, NEVADA
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ALPS PROPERTY & CASUALTY
INSURANCE COMPANY
Plaintiff

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Case No.: 2:17-CV-02057-JCM-PAL
Dept. No.: XXVII

vs.
HAROLD P. GEWERTER,; HAROLD P.
GEWERTER, ESQ.,; VINCENT HESSER

EX PARTE MOTION TO EXTEND
TIME TO RESPOND TO COMPLAINT
(FIRST REQUEST)

Defendants

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Defendant Vincent Hesser, by and through his attorney of record files this Ex Parte
Motion for Extension of Time to Respond to Complaint. (First Request). The motion is based

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on the pleadings and papers on file, the points and authorities and any argument of counsel.
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Dated this 31st day of August 2017.

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LAW OFFICES OF BYRON THOMAS

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/s/ Byron E. Thomas

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Byron E. Thomas, Esq.
Nevada Bar No. 8906
3275 S. Jones Blvd. Ste. 104
Las Vegas, Nevada 89146
Phone: [phone]
Attorneys for Vincent Hesser

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Case 2:17-cv-02057-JCM-PAL Document 10 Filed 08/31/17 Page 2 of 5

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POINTS AND AUTHORITIES.

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Defendant Hesser’s response to Plaintiff’s Answer was originally due August 28,

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2017. Defendant’s counsel contacted Plaintiff before the expiration of the deadline to
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obtain an extension. Plaintiff’s counsel agreed to an extension.
Defendant’s counsel has been suffering from a sinus infection and flu like

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symptoms.

See Declaration of Byron Thomas attached as Exhibit “A.” Defendant’s

counsel illness grew worse, Defendant’s counsel ears have clogged, Defendant’s counsel

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has suffered what he hopes is a temporary loss of hearing and increased flu like symptoms.
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Id. Because of the worsening illness Defendant’s counsel was not able to complete the
stipulation or file a response by August 28, 2017.

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The Court may extend the deadline after its expiration on a finding of excusable
neglect. Plaintiff requests an extension until September 5, 2017.

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Factors the Court should consider are as follows:

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To determine whether the inadvertence can be excusable, we apply
the Pioneer factors: (1) the danger of prejudice to the nonmoving party; (2)
the length of delay; (3) the reason for the delay, including whether it was
within the reasonable control of the movant; and (4) whether the moving
party's conduct was in good faith. Id. at 855 (citing Pioneer, 507 U.S. at 395,
113 S.Ct. 1489).

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Pincay v. Andrews, 389 F.3d 853, 858–59 (9th Cir.2004) (en banc).

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Case 2:17-cv-02057-JCM-PAL Document 10 Filed 08/31/17 Page 3 of 5

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In the instant case the delay would only be eight (8) days, no other deadlines would

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be effected, Plaintiff would not be prejudiced. Plaintiff has reviewed the motion and has

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agreed not to oppose the extension. The illness was beyond Defendant’s control, and

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Defendant is acting in good faith and does not have an ulterior motive for the request.

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CONCLUSION
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For the foregoing reasons the time to respond to Plaintiff’s Complaint should be
extended to September 5, 2017.
Dated this 31st day of August 2017

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LAW OFFICES OF BYRON THOMAS

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/s/ Byron E. Thomas

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Byron E. Thomas, Esq.
Nevada Bar No. 8906
3275 S. Jones Blvd. Ste. 104
Las Vegas, Nevada 89146
Phone: [phone]
Attorneys for Vincent Hesser

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IT IS SO ORDERED:

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__________________________________
UNITED STATES DISTRICT JUDGE, or
UNITED STATES MAGISTRATE JUDGE

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September 8, 2017
DATED: _____________”

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Case 2:17-cv-02057-JCM-PAL Document 10 Filed 08/31/17 Page 4 of 5

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EXHIBIT “A”

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Case 2:17-cv-02057-JCM-PAL Document 10 Filed 08/31/17 Page 5 of 5

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BYRON E. THOMAS
IN SUPPORT OF MOTION FOR EXTENSION OF TIME

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I, BYRON E. THOMAS, declare under penalty of perjury as follows:

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1.

I am an individual and a resident of Clark County, Nevada. I am

over the age of 18. I am licensed to practice law in the State of Nevada, and I am
in good standing. I am competent to make this declaration.

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2.

I am the counsel to Defendant Vincent Hesser in this litigation.

3.

I contacted Plaintiff’s counsel and was granted an extension. At the

time of the request I was suffering from what I believed was a sinus infection
and flu like symptoms. Before I could prepare the proper documentation of the
stipulation, and or respond to the Complaint, my symptoms worsened my ears
clogged and my hearing was significantly decreased as well as ringing in my
ears, headache chills, congestion, cramping and body aches. And I was not able
to respond to the Complaint on behalf of Defendant Hesser in a timely manner.
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Therefore, the request for extension has been made in good faith.

Moreover, Plaintiff’s counsel has reviewed this Motion and will not oppose it.

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5.

As this will be Defendant Hesser’s initial response the extension

will not affect any deadlines.

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6. I declare under penalty of perjury that the foregoing is true and

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correct.

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Dated this _31__th day of August 2017.

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/s/ BYRON E. THOMAS
Byron E. Thomas

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