Amtrust International Underwriters v. Findlay, et al

Filing 73

ORDER granting 66 Motion to Extend Time; Re: 65 Motion for Summary Judgment. Responses due by 9/10/2019. Replies due by 9/24/2019. Signed by Magistrate Judge Cam Ferenbach on 8/20/2019. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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AMTRUST INTERNATIONAL
UNDERWRITERS, LIMITED,

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2:18-CV-00652-JCM-VCF
ORDER

Plaintiff,
vs.

MOTION TO EXTEND DISPOSITIVE
MOTION DEADLINE (SECOND REQUEST)
[ECF NO. 66]

CLIFFORD J. FINDLAY and DONNA SUE
FINDLAY, individually and as Trustees, CLIFF
FINDLAY AND DONNA S. FINDLAY
FAMILY TRUST, DATED FEBRUARY 20,
1986; FINDLAY MANAGEMENT GROUP;
FINDLAY-NOLTE AUTOMOTIVE, LLC;
CLIFF FINDLAY AUTOMOTIVE, LLC;
FINDLAY AUTO HOLDINGS, LLC; CLIFF
FINDLAY AUTO CENTER; TYLER CORDER;
and WINDMILL FARMS, INC.,
Defendants.

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Before the Court is defendants and counterclaimants Clifford J. Findlay, Donna Sue Findlay, Cliff

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Findlay and Donna S. Findlay Family Trust, Dated February 20, 1986; Findlay Management Group;

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Findlay-Nolte Automotive, LLC; Cliff Findlay Automotive, LLC; Findlay Auto Holdings, LLC; Cliff

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Findlay Auto Center; and Tyler Corder’s motion to extend the dispositive motion deadline (second

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request). (ECF No. 66). For the reasons discussed below, this Court grants the motion.

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BACKGROUND

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On February 22, 2019, this Court entered a stipulation and order to extend discovery. (ECF No.

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58). On April 9, 2019, plaintiff and counter-defendant AmTrust International Underwriters, Limited filed

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a second request to extend discovery deadlines. (ECF No. 59). AmTrust did not propose that this Court

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move the dispositive motion deadline. (Id. at 4). This Court has previously ordered that dispositive

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motions were due August 2, 2019. (ECF 58 at 3). This Court denied AmTrust’s request to extend discovery

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but allowed AmTrust to depose a Findlay witness after the discovery cutoff. (ECF No. 64). This Court

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also ordered that the new dispositive motions deadline would be July 29, 2019. (Id.)

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On July 29, 2019, AmTrust filed its motion for summary judgment. (ECF No. 65). On August 2,

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2019, the Findlay parties filed the instant motion to extend time and its motion for summary judgment.

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(ECF Nos. 66 and 67). The parties have fully briefed the motion to extend time. (ECF Nos. 68 and 70).

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The Findlay parties argue that they mistakenly believed the dispositive motion deadline was still August

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2, 2019 due to a calendaring oversight. (ECF No. 70 at 2). The Findlay parties argue that their failure to

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meet the deadline constitutes excusable neglect. (Id.) AmTrust argues in opposition that it would be

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prejudiced because the Findlay parties’ untimely filing disturbs the briefing schedule set forth in Local

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Rule 7-2(b), which would give the Findlay parties the unfair advantage of seeing AmTrust’s briefs first.

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(ECF No. 68 at 6).

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ANALYSIS

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A court may, for good cause, extend the time on a motion made after the time has expired if the

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party failed to act because of excusable neglect. Federal Rule of Civil Procedure 6(b)(1)(B). It is settled

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that the federal rules should be liberally construed to effectuate the general purpose that courts decide

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cases on the merits. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010), citing to

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Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983). A motion to extend deadlines in the court's scheduling

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order must be supported by a showing of good cause for the extension. FRCP 16(b)(4) and LR 26-4. A

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motion or stipulation to extend a deadline set forth in a discovery plan must be received by the court no

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later than 21 days before the expiration of the subject deadline. LR 26-4. A request made after the

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expiration of the deadline will not be granted unless the movant also demonstrates that the failure to act

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was the result of excusable neglect. (Id.)

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To determine whether a party's failure to meet a deadline constitutes excusable neglect, courts

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apply a four-factor equitable test, examining: (1) the danger of prejudice to the opposing party; (2) the

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length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether

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the movant acted in good faith. See Pioneer Inv. Servs. Co. v. Brunswick Hotel & Casino, 116 F.3d 379,

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395 (1993).

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The Findlay parties have demonstrated good cause as required by Rule 6(b)(1). The Findlay

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parties’ claim that the calendar error reflected this Court’s previous order that all dispositive motions were

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due on August 2, 2019 is supported by the record. All four Pioneer factors favor the Findlay parties. The

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four-day delay does not impact proceedings as the Court has not set a hearing on the summary judgment

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motion or a trial date. The Findlay parties’ reason for delay, that they mistakenly believed that the previous

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dispositive deadline was still in effect given that neither party had requested that the Court change the

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deadline, establishes excusable neglect. The Findlay parties filed their motion for summary judgment on

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August 2, 2019, consistent with their mistaken belief that the dispositive motion deadline was still August

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2, 2019. The Findlay parties’ reliance on the calendaring mistake does not appear to be a bad-faith, post-

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hoc rationalization concocted to secure additional time.

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There is no danger of prejudice to the opposing party: “seeing a brief first” is not an unfair

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advantage. Were this Court to rule otherwise, it would discourage parties from filing briefing early and

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promote the practice of filing dispositive motions at the eleventh hour on the day it is due. The Findlay

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parties promised, unprompted, that they would file their opposition to AmTrust’s motion for summary

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judgment early, on August 6, 2019, to ensure that all the issues could be heard at the same time. (ECF No.

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66 at 5). The Findlay parties kept their word and filed their opposition to AmTrust’s motion for summary

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judgment on August 6, 2019. (ECF No. 69). The Findlay parties have demonstrated that their failure to

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act was the result of excusable neglect.

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Accordingly, and for good cause shown,

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IT IS HEREBY ORDERED that the Findlay parties’ motion to extend the dispositive motion

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deadline to August 2, 2019 (second request) (ECF No. 66) is GRANTED.
IT IS FURTHER ORDERED that the following deadlines will apply for the remainder of the
summary judgment briefing:
1. Any response to the Findlay parties’ motion for summary judgment is due September 10, 2019;
and
2. All replies in support of the pending motions for summary judgment are due on September 24,
2019.
DATED this 20th day of August 2019.
_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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