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JESSE ANDERSON LUJAN AND CIVIL CASE NO.: CV1219-17 FRANCIS GILL, Plaintiffs, DECISION AND ORDER v. Re: Plaintiffs Ex Parte Motion to Enlarge Time for Opposing Motion to Dismiss
STEPHEN TEBO and DOES ONE (1) through TEN (10), inclusive. Defendants. 10 12 13 This matter came before the Honorable Judge Anita A. Sukola on January 14, 14 2021, upon Plaintiffs' Ex Parte Motion to Enlarge Time for Opposing Motion to Dismiss. 15 The Plaintiffs, Jesse Anderson Lujan and Francis Gill ("Plaintiffs") are represented by 16 Curtis C. Van de Veld, Esq. The Defendants, Stephen Tebo and Does One (I) through Ten 17 (I 0) ("Defendants"), are represented by Joyce C.H. Tang, Esq. Co-Defendant Richard 18 Jotberg, named as Doe One, is represented by Daron Berman, Esq. For the reasons set 19 forth below, having reviewed the moving papers and oral argument of both parties, the 20 Court GRANTS Plaintiffs' Ex Parte Motion to Enlarge Time for Opposing Motion to 21 Dismiss.
CV1219-17, Jesse Anderson Lujan, et al v. Stephen Tebo, et al. Page I ofS Decision and Order (Ex Parte Motion to Enlarge Time). On February 6, 2020, Defendant Jortberg, acting pro se, signed a proposed 2 Scheduling Order and Discovery Plan and Order. See Pl.'s Ex Parte Mot. to Enlarge Time, 3 Ex. 1 (Jan. 6, 2021 ). The documents were then signed by Plaintiffs, through counsel, on 4 the same date. Id. On July 10, 2020, nearly five (5) months later, Defendants signed the 5 documents, through counsel, and filed the proposed Scheduling Order and Discovery Plan 6 with the Court. Id., Ex. 2. A hearing was held on July 30, 2020, in which Defendants 7 complained of failure to prosecute, and promised to file a motion for dismissal before the 8 next hearing on September 10, 2020.ld., Ex. 3. 9 On August 13, 2020, Attorney Berman entered his appearance for Defendant 10 Jotberg. At the hearing held on September 10, 2020, both parties recognized an "extremely 11 brief' settlement attempt that was unsuccessful. Id., Ex. 4. Both Plaintiffs were outside of 12 Guam and restricted in movement due to the ongoing Covid-19 Pandemic. Id., Ex. 5. 13 Lujan filed a Motion to Dismiss on November 18, 2020. See Mot. to Dismiss (Nov. 18, 14 2020). An Opposition Brieffrom the Plaintiffs was due on December 16, 2020. See CVR 15 7.1 Form I (Nov. 28, 2020). On December 21, 2020, Plaintiffs counsel sent an email 16 requesting Defendant to agree to enlarge the time for filing an Opposition to December 28, 17 2020. See Pl.'s Ex Parte Mot. to Enlarge Time, Ex. 6 (Jan. 6, 2021). Defendant did not 18 agree to an extension. I d., Ex. 7. 19 Plaintiffs then filed the instant motion on January 6, 2021, seeking leave of the 20 Court for an enlargement of time to file an Opposition to the Motion to Dismiss. They 21 claim that counsel did not calendar the due date correctly due to a shortage of staff under 22 the threat of the pandemic, and a problem at counsel's office with printing and scanning 23 documents. See Id., Ex. 9, Ex. 10. 24 At a motion hearing held on January 14, 2021, the Court heard oral arguments on 25 the matter and subsequently took the matter under advisement. 26 27 DISCUSSION 28 29 The Local Rules of the Superior Court of Guam provide for situations where a 30 party fails to file a paper in a timely manner. The relevant rule states, in part: 31
CVI2 I 9- I 7, Jesse Anderson Lujan, et al v. Stephen Tebo, et al. Page 2 ofS Decision and Order (Ex Parte Motion to Enlarge Time). (f) Failure to File Required Papers. Papers not timely filed by a party 2 including any memoranda or other papers required to be filed under this 3 Rule shall not be considered without leave of court. 4 5 CVR Rule 7 .I (f). 6 7 A court may grant a party a longer period to file his moving papers under Guam 8 Rules of Civil Procedure, Rule 6(b ), which states, in part: 9 10 (b) Enlargement. When by these rules or by a notice given thereunder or by 11 order of court an act is required or allowed to be done at or within a 12 specified time, the court for cause shown may at any time in its discretion 13 (1) with or without motion or notice order the period enlarged if request 14 therefor is made before the expiration of the period originally prescribed or 15 as extended by a previous order, or (2) upon motion made after the 16 expiration of the specified period permit the act to be done where the 17 failure to act was the result of excusable neglect. 18 19 GRCP 6(b). 20 21 The Guam Supreme Court has clarified that "[t]his portion of the rule thus requires 22 (1) a motion and (2) a showing that the failure to act was the result of excusable neglect." 23 Government of Guam v. O'Keefe on behalf of Heirs of Torres Estate, 2018 Guam 4 ~ 23. 24 Further, "[a]s Guam Rules of Civil Procedure are generally derived from, although not 25 identical to, the Federal Rules of Civil Procedure, federal decisions that construe the 26 federal counterparts to the Guam Rules of Civil Procedure are persuasive authority." Id. ~ 27 9 (citing People v. Quitugua, 2009 Guam l 0 ~ 10). 28 Accordingly, "any extension of a time limitation must be 'for cause shown."' 29 Ltljan v. National Wildlife Federation, 497 U.S. 871, 896 (1990). The phrase "excusable 30 neglect" is an elastic concept, and the drafters of Federal Rules of Civil Procedure "did not 31 indicate they intended anything other than the commonly accepted meaning of the phrase . 32 .. " Kettle Range Conservation Group v. US. Forest Service, 8 Fed.Appx. 729, 731 (9th
CVI219-17, Jesse Anderson Lujan, eta! v. Stephen Tebo, et al. Page 3 of5 Decision and Order (Ex Parte Motion to Enlarge Time). Cir. 2001 ). Ultimately, "the determination is at bottom an equitable one, taking account of 2 all relevant circumstances surrounding the party's omission." Id. 3 Thus, the Court "must consider all the circumstances in deciding whether to excuse 4 a party's neglect, notably 'the danger of prejudice to the [nonmovant], the length of delay 5 and its potential impact on judicial proceedings, the reason for the delay, including 6 whether it was within the reasonable control of the movant, and whether the movant acted 7 in good faith." Id. at 732 (quoting Pioneer Investment Services Co. v. Brunswick 8 Associates Limited Partnership, 507 U.S. 380, 391 (1993)). 9 Here, it is undisputed that Plaintiffs filed a motion requesting to enlarge time after 10 the deadline for a responsive motion was due. Thus, the key question becomes whether an 11 extension should be granted due to excusable neglect. First, Defendants have not shown 12 prejudice, only claiming the delay has prejudiced them, and none appears to the Court. See 13 Bateman v. US. Postal Service, 231 F.3d 1220 (9th Cir. 2000) ("the mere possibility of 14 prejudice from delay, which is inherent in every case, is insufficient . . . ") (quoting 15 Hiberia Nat'! Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1280 (5th 16 Cir. 1985)). Finally, the motion at issue is a Motion to Dismiss would could effectively 17 end the case and losing that unopposed opportunity is not prejudicial. See Ahanchian v. 18 Xenon Pictures, Inc., 624 F.2d 1253, 1262 (9th Cir. 2010) ("At most, [nonmovant] would 19 have won a quick but unmerited victory, the loss of which we do not consider 20 prejudicial").
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JESSE ANDERSON LUJAN AND CIVIL CASE NO.: CV1219-17 FRANCIS GILL, Plaintiffs, DECISION AND ORDER v. Re: Plaintiffs Ex Parte Motion to Enlarge Time for Opposing Motion to Dismiss
STEPHEN TEBO and DOES ONE (1) through TEN (10), inclusive. Defendants. 10 12 13 This matter came before the Honorable Judge Anita A. Sukola on January 14, 14 2021, upon Plaintiffs' Ex Parte Motion to Enlarge Time for Opposing Motion to Dismiss. 15 The Plaintiffs, Jesse Anderson Lujan and Francis Gill ("Plaintiffs") are represented by 16 Curtis C. Van de Veld, Esq. The Defendants, Stephen Tebo and Does One (I) through Ten 17 (I 0) ("Defendants"), are represented by Joyce C.H. Tang, Esq. Co-Defendant Richard 18 Jotberg, named as Doe One, is represented by Daron Berman, Esq. For the reasons set 19 forth below, having reviewed the moving papers and oral argument of both parties, the 20 Court GRANTS Plaintiffs' Ex Parte Motion to Enlarge Time for Opposing Motion to 21 Dismiss.
CV1219-17, Jesse Anderson Lujan, et al v. Stephen Tebo, et al. Page I ofS Decision and Order (Ex Parte Motion to Enlarge Time). On February 6, 2020, Defendant Jortberg, acting pro se, signed a proposed 2 Scheduling Order and Discovery Plan and Order. See Pl.'s Ex Parte Mot. to Enlarge Time, 3 Ex. 1 (Jan. 6, 2021 ). The documents were then signed by Plaintiffs, through counsel, on 4 the same date. Id. On July 10, 2020, nearly five (5) months later, Defendants signed the 5 documents, through counsel, and filed the proposed Scheduling Order and Discovery Plan 6 with the Court. Id., Ex. 2. A hearing was held on July 30, 2020, in which Defendants 7 complained of failure to prosecute, and promised to file a motion for dismissal before the 8 next hearing on September 10, 2020.ld., Ex. 3. 9 On August 13, 2020, Attorney Berman entered his appearance for Defendant 10 Jotberg. At the hearing held on September 10, 2020, both parties recognized an "extremely 11 brief' settlement attempt that was unsuccessful. Id., Ex. 4. Both Plaintiffs were outside of 12 Guam and restricted in movement due to the ongoing Covid-19 Pandemic. Id., Ex. 5. 13 Lujan filed a Motion to Dismiss on November 18, 2020. See Mot. to Dismiss (Nov. 18, 14 2020). An Opposition Brieffrom the Plaintiffs was due on December 16, 2020. See CVR 15 7.1 Form I (Nov. 28, 2020). On December 21, 2020, Plaintiffs counsel sent an email 16 requesting Defendant to agree to enlarge the time for filing an Opposition to December 28, 17 2020. See Pl.'s Ex Parte Mot. to Enlarge Time, Ex. 6 (Jan. 6, 2021). Defendant did not 18 agree to an extension. I d., Ex. 7. 19 Plaintiffs then filed the instant motion on January 6, 2021, seeking leave of the 20 Court for an enlargement of time to file an Opposition to the Motion to Dismiss. They 21 claim that counsel did not calendar the due date correctly due to a shortage of staff under 22 the threat of the pandemic, and a problem at counsel's office with printing and scanning 23 documents. See Id., Ex. 9, Ex. 10. 24 At a motion hearing held on January 14, 2021, the Court heard oral arguments on 25 the matter and subsequently took the matter under advisement. 26 27 DISCUSSION 28 29 The Local Rules of the Superior Court of Guam provide for situations where a 30 party fails to file a paper in a timely manner. The relevant rule states, in part: 31
CVI2 I 9- I 7, Jesse Anderson Lujan, et al v. Stephen Tebo, et al. Page 2 ofS Decision and Order (Ex Parte Motion to Enlarge Time). (f) Failure to File Required Papers. Papers not timely filed by a party 2 including any memoranda or other papers required to be filed under this 3 Rule shall not be considered without leave of court. 4 5 CVR Rule 7 .I (f). 6 7 A court may grant a party a longer period to file his moving papers under Guam 8 Rules of Civil Procedure, Rule 6(b ), which states, in part: 9 10 (b) Enlargement. When by these rules or by a notice given thereunder or by 11 order of court an act is required or allowed to be done at or within a 12 specified time, the court for cause shown may at any time in its discretion 13 (1) with or without motion or notice order the period enlarged if request 14 therefor is made before the expiration of the period originally prescribed or 15 as extended by a previous order, or (2) upon motion made after the 16 expiration of the specified period permit the act to be done where the 17 failure to act was the result of excusable neglect. 18 19 GRCP 6(b). 20 21 The Guam Supreme Court has clarified that "[t]his portion of the rule thus requires 22 (1) a motion and (2) a showing that the failure to act was the result of excusable neglect." 23 Government of Guam v. O'Keefe on behalf of Heirs of Torres Estate, 2018 Guam 4 ~ 23. 24 Further, "[a]s Guam Rules of Civil Procedure are generally derived from, although not 25 identical to, the Federal Rules of Civil Procedure, federal decisions that construe the 26 federal counterparts to the Guam Rules of Civil Procedure are persuasive authority." Id. ~ 27 9 (citing People v. Quitugua, 2009 Guam l 0 ~ 10). 28 Accordingly, "any extension of a time limitation must be 'for cause shown."' 29 Ltljan v. National Wildlife Federation, 497 U.S. 871, 896 (1990). The phrase "excusable 30 neglect" is an elastic concept, and the drafters of Federal Rules of Civil Procedure "did not 31 indicate they intended anything other than the commonly accepted meaning of the phrase . 32 .. " Kettle Range Conservation Group v. US. Forest Service, 8 Fed.Appx. 729, 731 (9th
CVI219-17, Jesse Anderson Lujan, eta! v. Stephen Tebo, et al. Page 3 of5 Decision and Order (Ex Parte Motion to Enlarge Time). Cir. 2001 ). Ultimately, "the determination is at bottom an equitable one, taking account of 2 all relevant circumstances surrounding the party's omission." Id. 3 Thus, the Court "must consider all the circumstances in deciding whether to excuse 4 a party's neglect, notably 'the danger of prejudice to the [nonmovant], the length of delay 5 and its potential impact on judicial proceedings, the reason for the delay, including 6 whether it was within the reasonable control of the movant, and whether the movant acted 7 in good faith." Id. at 732 (quoting Pioneer Investment Services Co. v. Brunswick 8 Associates Limited Partnership, 507 U.S. 380, 391 (1993)). 9 Here, it is undisputed that Plaintiffs filed a motion requesting to enlarge time after 10 the deadline for a responsive motion was due. Thus, the key question becomes whether an 11 extension should be granted due to excusable neglect. First, Defendants have not shown 12 prejudice, only claiming the delay has prejudiced them, and none appears to the Court. See 13 Bateman v. US. Postal Service, 231 F.3d 1220 (9th Cir. 2000) ("the mere possibility of 14 prejudice from delay, which is inherent in every case, is insufficient . . . ") (quoting 15 Hiberia Nat'! Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1280 (5th 16 Cir. 1985)). Finally, the motion at issue is a Motion to Dismiss would could effectively 17 end the case and losing that unopposed opportunity is not prejudicial. See Ahanchian v. 18 Xenon Pictures, Inc., 624 F.2d 1253, 1262 (9th Cir. 2010) ("At most, [nonmovant] would 19 have won a quick but unmerited victory, the loss of which we do not consider 20 prejudicial"). 21 Next the length of the delay caused by the motion to enlarge time has been 22 relatively minor. The Opposition Brief was due on December 16, 2020, and Plaintiffs filed 23 their Ex Parte Motion on January 6, 2020, and have requested a ten day extension. This is 24 typically not a delay significant enough to justify relief. See Bateman, at 1225 (finding a 25 month-long delay not enough to justify denying relief). However, the Court does note the 26 repeated delays caused by Plaintiff and their counsel, and the length of time passed since 27 the original trial was scheduled. 28 Next, the reason for the delay is weak and was within control of Plaintiffs' counsel. 29 He claims scheduling errors due to staff working from home, and a problem with the 30 office printer and scanner. However, "while a calendaring mistake caused by failure to 31 apply a clear local rule may be a weak justification for attorney's delay, we have 32 previously found the identical mistake to be excusable neglect." Ahanchian, at 1262.
CV1219-17, Jesse Anderson Lujan, et at v. Stephen Tebo, et at. Page 4 ofS Decision and Order (Ex Parte Motion to Enlarge Time). Finally, while the Plaintiffs their attorney have certainly been neglectful, the court 2 can find no evidence of bad faith, and the Defendants have not alleged that any bad faith 3 existed in failing to file the opposition paper in a timely manner. Thus, on the balance of 4 factors, the Court must grant Plaintiffs' Motion to Enlarge Time. 5 6 Conclusion 7 8 Based on the foregoing, Plaintiffs' Ex Parte Motion to Enlarge Time to for 9 Opposing Motion to Dismiss is GRANTED. Plaintiffs shall have until January 22, 2021 to 10 file their Opposition, and Defendants shall have until January 29, 2021 to file a Response. 11 The hearing for the Motion to Dismiss shall occur on February 4, 2021 at One (1 :00) PM 12 via Zoom. 13 14 15 16 SO ORDERED this 0\ l\St 'J:P'1..-}
~f~ 17 18 The Honorable Anita A. Sukola Judge, Superior Court of Guam
CV1219-17, Jesse Anderson Lujan, et al v. Stephen Tebo, et al. Page 5 ofS Decision and Order (Ex Parte Motion to Enlarge Time).