Foley v. Graham

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Michael Foley, Case No.: 2:16-cv-01871-JAD-VCF

4 Plaintiff Order Granting Motion to Extend Time 5 v. [ECF No. 51] 6 Kenneth Graham, et al.,

7 Defendants

8 After missing his deadline to oppose defendants’ motion to dismiss,1 pro se plaintiff 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 11 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 19

1 ECF No. 47. 20 2 ECF No. 51. 21 3 ECF No. 52. 22 4 L.R. IA 6-1(a). 5 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)), 6 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 whether the movant acted in good faith.’”’ 4 Foley states that his failure to timely respond was the result of excusable neglect because was in the middle of moving out of his home and was only “recently . . . able to use 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. I grant his motion and extend his deadline to respond to the defendants’ motion to dismiss to April 3, 2020. 10 IT IS THEREFORE ORDERED that Foley’s motion to extend the deadline to respond to 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. 13 Dated: March 13, 2020 ces U.S. District Judge Jennifer A. Dorsey 15 16 17 18 19 20 21 22 23 1 Id. (quoting Bateman vy. U.S. Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000)).