Gerwaski v. State of Nevada

Opinion

3 Corey Gerwaski, 2:24-cv-00985-APG-MDC

4 Plaintiff(s), ORDER GRANTING MOTION FOR RECONSIDERATION (ECF NO. 63) 5 vs. 6 State of Nevada ex rel. Board of Regents of the 7 Nevada System of Higher Education, et al., 8 Defendant(s). 9

10 The Court has reviewed plaintiff’s Motion for Reconsideration (“Motion”). ECF No. 63. The 11 12 Court GRANTS the Motion. 13 Federal Rule of Civil Procedure 60(1) states that, “[o]n motion and just terms, the court may 14 relieve a party or its legal representative from a final judgment, order, or proceeding for…mistake, 15 inadvertence, surprise, or excusable neglect[.]” Local Rule 59-l(a) states that motions for 16 reconsideration, must state the, “[c]hanges in legal or factual circumstances that may entitle the movant 17 to relief also must be stated with particularity.” Reconsideration may be appropriate if the district court 18 is presented with newly discovered evidence. Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th 19 Cir. 2013) (citing School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 20 Local Rule IA 6-1(a) states that to effectuate a filing after the relevant deadline already passed, 21 the party must “demonstrates that the failure to file the motion before the deadline expired was the result 22 of excusable neglect.” The Ninth Circuit admonished that, "[c]ases should be decided on the merits 23 whenever reasonably possible." Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). 24 25 Plaintiff states in his Motion that his new counsel asked opposing counsel for an extension of time to respond to the motion to quash. ECF No. 63. Plaintiff attached an email showing that opposing

5 counsel agreed to a fourteen-day extension. ECF No. 63-1. Plaintiff's new counsel states that he

3 || madvertently did not file a stipulation to seek the Court’s permission for an extension of time. ECF No. 4 || 63. Third Party Intervenor Hatem Bazian (“Bazian”) argues in his opposition that (1) it is of no fault to 5 || him that plaintiff failed to file a stipulation, (2) that plaintiff failed to show excusable neglect, (3) that 6 || there is no newly discovered evidence, and (4) that the Court ruled on Bazian’s motion on the merits. 7 || ECF No. 73. The Court finds that new counsel has shown excusable neglect as plaintiff's previous || counsel left the case and new counsel inadvertently did not file the stipulation that Bazian apparently ° agreed to sign. The Court agrees that the email exchange is not newly discovered evidence as contemplated by the Ninth Circuit in Smith, but the Court must also abide by the Ninth Circuit’s admonishment in Eite/ to decide cases on the merits when possible. Smith 727 F.3d at 955 and Eitel v. 782 F.2d at 1472. While the Court did rule on Bazian’s motions on the facts as presented by Bazian, the

4 plaintiff did not have an opportunity to rebut the facts in that motion. Bazian will not be prejudiced 15 because he may file a reply to plaintiffs opposition. 16 IT IS SO ORDERED: " 1. Plaintiff's Motion for Reconsideration (ECF No. 63) is GRANTED. Plaintiff must file his proposed opposition that he attached to his Motion (ECF No. 63-2) on the docket by July 7, © 2025. 20 2. Third-Party Intervenor Hatem Bazian has until July 14, 2025 to file his reply.

22 IT IS SO ORDERED. pe 7 a 23 Date: July 3, 2025 Af AX

35 L United T/ Judge