1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENDALL BURTON, No. 2:19-cv-1461 JAM AC P 12 Plaintiff, 13 v. ORDER 14 JIMENEZ, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding in forma pauperis and with counsel, has filed this 18 civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 20 Before this court are plaintiff’s objections to the magistrate judge’s findings and 21 recommendations issued June 6, 2021, and plaintiff’s corrected proposed order requesting that his 22 objections to the magistrate judge’s recommendations be “sustained.” See ECF Nos. 12, 13. 23 Within plaintiff’s objections is also a request for an extension of time to file his notice on how to 24 proceed in this action.1 See ECF No. 12 at 3-6. 25 //// 26
27 1 The court acknowledges that plaintiff’s notice on how to proceed was subsequently late-filed on June 16, 2021. See ECF No. 14. In it, plaintiff’s attorney, Benjamin Rudin, states that plaintiff 28 wishes to amend the complaint if his extension of time request is granted. See id. at 2. 1 For the reasons stated below, the court will not adopt the magistrate judge’s findings and 2 recommendations. Plaintiff’s motion for an extension of time to file his notice on how to proceed 3 on the grounds of “excusable neglect” permitted under Federal Rule of Civil Procedure 6(b)(1)(B) 4 will be denied. Instead, in the interests of justice, the court will permit plaintiff’s notice on how 5 to proceed to be filed and reviewed nunc pro tunc, and the magistrate judge assigned to this action 6 will be directed to permit plaintiff to file an amended complaint within a reasonable amount of 7 time. 8 I. RELEVANT FACTS. 9 On May 18, 2021, the magistrate judge assigned to this action screened plaintiff’s 10 complaint pursuant to 28 U.S.C. § 1915A and determined that several of the claims raised therein 11 were not cognizable. See ECF No. 7 at 11. As a result, plaintiff was given the option of either 12 proceeding on the viable claims or filing an amended complaint, and he was given fourteen days 13 to inform the court of his decision via an attached form labeled “Plaintiff’s Notice on How to 14 Proceed.” See id. at 12. The order clearly warned that plaintiff’s failure to file the notice on how 15 to proceed would result in a recommendation that certain defendants and claims be dismissed. 16 See id. at 11. The same day, a copy of the order and notice form were electronically mailed to 17 Attorney Benjamin Rudin, plaintiff’s counsel of record. See ECF No. 7 (NEF receipt). 18 Two weeks later, counsel for plaintiff had not filed the notice on how to proceed on behalf 19 of plaintiff. Three weeks later, on June 9, 2021, having still not received a response of any kind 20 from Attorney Rudin on plaintiff’s behalf, the magistrate judge issued the instant findings and 21 recommendations. ECF No. 11. The next day, Attorney Rudin filed objections to the 22 magistrate’s findings on behalf of plaintiff along with a related corrected proposed order which 23 prompts the court to “sustain” plaintiff’s objections. See ECF Nos. 12, 13. Also enmeshed 24 within the objections filing is Attorney Rudin’s declaration (ECF No. 12-1) which makes an 25 “excusable neglect” argument pursuant to Federal Rule of Civil Procedure 6(b)(1)(B) for not 26 having timely filed plaintiff’s notice on how to proceed, as well as a request for an extension of 27 time to file it (see ECF No. 12 at 3-6). 28 //// 1 Shortly thereafter, Attorney Rudin filed a notice on how to proceed on plaintiff’s behalf. 2 See ECF No. 14. The court considers the objections, extension request, proposed order and the 3 late-filed notice herein. 4 II. DISCUSSION 5 A. Applicable Law 6 Federal Rule of Civil Procedure 6(b)(1)(B) enables the court to, for good cause, extend the 7 time for a litigant to file a document after the time to do so has expired if the litigant failed to act 8 because of excusable neglect. It states in relevant part:
9 (b) Extending Time. 10 (1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time: 11 . . . . (B) on motion made after the time has expired if the party failed to act 12 because of excusable neglect.
13 14 Fed. R. Civ. P. 6(b)(1)(B) (italics added). 15 In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1993), 16 the Supreme Court provided factors to consider when determining whether neglecting to meet 17 court-ordered deadlines was excusable. They are: (1) the danger of prejudice to the opposing 18 party; (2) the length of the delay and its potential impact on the proceedings; (2) the reason for the 19 delay, and (4) whether the movant acted in good faith. See Pioneer, 507 U.S. at 395; see also In 20 re Veritas Software Corp. Sec. Litig., 496 F.3d 962, 973 (9th Cir. 2007) (citing Pioneer). 21 B. Analysis 22 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 23 court has conducted a de novo review of this case. Having carefully reviewed the entire file, for 24 the reasons stated below, the court finds the findings and recommendations to be supported by the 25 record and by proper analysis. It agrees with the magistrate judge’s substantive findings that only 26 Claims One and Two raised against defendants Jimenez, Troth and Orpesa are cognizable. See 27 ECF No. 7 at 11. Furthermore, the magistrate’s recommendations were properly issued given 28 1 that: (1) plaintiff’s counsel failed to timely respond to the court’s order to inform it whether 2 plaintiff wished to proceed on the viable claims in the complaint or amend it; (2) plaintiff’s 3 counsel failed to timely move for an extension of time to file the notice, and (3) the court is not 4 convinced that Attorney Rudin’s failure to do either constitutes Federal Rule of Civil Procedure 5 6(b)(1)(B) “excusable neglect” as fleshed out in Pioneer. However, as discussed below, the 6 interests of justice warrant the court’s review of plaintiff’s late-filed notice on how to proceed. 7 They also warrant plaintiff being given an opportunity to file an amended complaint. 8 1. “Excusable Neglect” Under Federal Rule of Civil Procedure 6(b)(1)(B) Not 9 Found 10 Having reviewed Attorney Rudin’s declaration in support of plaintiff’s objections to the 11 magistrate’s recommendations that certain claims and defendants be dismissed (see ECF No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENDALL BURTON, No. 2:19-cv-1461 JAM AC P 12 Plaintiff, 13 v. ORDER 14 JIMENEZ, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding in forma pauperis and with counsel, has filed this 18 civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 20 Before this court are plaintiff’s objections to the magistrate judge’s findings and 21 recommendations issued June 6, 2021, and plaintiff’s corrected proposed order requesting that his 22 objections to the magistrate judge’s recommendations be “sustained.” See ECF Nos. 12, 13. 23 Within plaintiff’s objections is also a request for an extension of time to file his notice on how to 24 proceed in this action.1 See ECF No. 12 at 3-6. 25 //// 26
27 1 The court acknowledges that plaintiff’s notice on how to proceed was subsequently late-filed on June 16, 2021. See ECF No. 14. In it, plaintiff’s attorney, Benjamin Rudin, states that plaintiff 28 wishes to amend the complaint if his extension of time request is granted. See id. at 2. 1 For the reasons stated below, the court will not adopt the magistrate judge’s findings and 2 recommendations. Plaintiff’s motion for an extension of time to file his notice on how to proceed 3 on the grounds of “excusable neglect” permitted under Federal Rule of Civil Procedure 6(b)(1)(B) 4 will be denied. Instead, in the interests of justice, the court will permit plaintiff’s notice on how 5 to proceed to be filed and reviewed nunc pro tunc, and the magistrate judge assigned to this action 6 will be directed to permit plaintiff to file an amended complaint within a reasonable amount of 7 time. 8 I. RELEVANT FACTS. 9 On May 18, 2021, the magistrate judge assigned to this action screened plaintiff’s 10 complaint pursuant to 28 U.S.C. § 1915A and determined that several of the claims raised therein 11 were not cognizable. See ECF No. 7 at 11. As a result, plaintiff was given the option of either 12 proceeding on the viable claims or filing an amended complaint, and he was given fourteen days 13 to inform the court of his decision via an attached form labeled “Plaintiff’s Notice on How to 14 Proceed.” See id. at 12. The order clearly warned that plaintiff’s failure to file the notice on how 15 to proceed would result in a recommendation that certain defendants and claims be dismissed. 16 See id. at 11. The same day, a copy of the order and notice form were electronically mailed to 17 Attorney Benjamin Rudin, plaintiff’s counsel of record. See ECF No. 7 (NEF receipt). 18 Two weeks later, counsel for plaintiff had not filed the notice on how to proceed on behalf 19 of plaintiff. Three weeks later, on June 9, 2021, having still not received a response of any kind 20 from Attorney Rudin on plaintiff’s behalf, the magistrate judge issued the instant findings and 21 recommendations. ECF No. 11. The next day, Attorney Rudin filed objections to the 22 magistrate’s findings on behalf of plaintiff along with a related corrected proposed order which 23 prompts the court to “sustain” plaintiff’s objections. See ECF Nos. 12, 13. Also enmeshed 24 within the objections filing is Attorney Rudin’s declaration (ECF No. 12-1) which makes an 25 “excusable neglect” argument pursuant to Federal Rule of Civil Procedure 6(b)(1)(B) for not 26 having timely filed plaintiff’s notice on how to proceed, as well as a request for an extension of 27 time to file it (see ECF No. 12 at 3-6). 28 //// 1 Shortly thereafter, Attorney Rudin filed a notice on how to proceed on plaintiff’s behalf. 2 See ECF No. 14. The court considers the objections, extension request, proposed order and the 3 late-filed notice herein. 4 II. DISCUSSION 5 A. Applicable Law 6 Federal Rule of Civil Procedure 6(b)(1)(B) enables the court to, for good cause, extend the 7 time for a litigant to file a document after the time to do so has expired if the litigant failed to act 8 because of excusable neglect. It states in relevant part:
9 (b) Extending Time. 10 (1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time: 11 . . . . (B) on motion made after the time has expired if the party failed to act 12 because of excusable neglect.
13 14 Fed. R. Civ. P. 6(b)(1)(B) (italics added). 15 In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1993), 16 the Supreme Court provided factors to consider when determining whether neglecting to meet 17 court-ordered deadlines was excusable. They are: (1) the danger of prejudice to the opposing 18 party; (2) the length of the delay and its potential impact on the proceedings; (2) the reason for the 19 delay, and (4) whether the movant acted in good faith. See Pioneer, 507 U.S. at 395; see also In 20 re Veritas Software Corp. Sec. Litig., 496 F.3d 962, 973 (9th Cir. 2007) (citing Pioneer). 21 B. Analysis 22 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 23 court has conducted a de novo review of this case. Having carefully reviewed the entire file, for 24 the reasons stated below, the court finds the findings and recommendations to be supported by the 25 record and by proper analysis. It agrees with the magistrate judge’s substantive findings that only 26 Claims One and Two raised against defendants Jimenez, Troth and Orpesa are cognizable. See 27 ECF No. 7 at 11. Furthermore, the magistrate’s recommendations were properly issued given 28 1 that: (1) plaintiff’s counsel failed to timely respond to the court’s order to inform it whether 2 plaintiff wished to proceed on the viable claims in the complaint or amend it; (2) plaintiff’s 3 counsel failed to timely move for an extension of time to file the notice, and (3) the court is not 4 convinced that Attorney Rudin’s failure to do either constitutes Federal Rule of Civil Procedure 5 6(b)(1)(B) “excusable neglect” as fleshed out in Pioneer. However, as discussed below, the 6 interests of justice warrant the court’s review of plaintiff’s late-filed notice on how to proceed. 7 They also warrant plaintiff being given an opportunity to file an amended complaint. 8 1. “Excusable Neglect” Under Federal Rule of Civil Procedure 6(b)(1)(B) Not 9 Found 10 Having reviewed Attorney Rudin’s declaration in support of plaintiff’s objections to the 11 magistrate’s recommendations that certain claims and defendants be dismissed (see ECF No. 12- 12 1), the court is not convinced that counsel’s failure to effectively communicate with his client – 13 and with the court, for that matter – in a prompt and effective manner constitutes “excusable 14 neglect” warranting a grant of an extension of time to file and consider plaintiff’s notice on how 15 to proceed and a decision not adopt the magistrate’s findings and recommendations (see generally 16 ECF No. 12 at 3-6). Indeed, the third Pioneer factor to consider, namely, the reasons for the delay 17 in plaintiff’s filing of the notice to proceed that have been provided by Attorney Rudin in his 18 declaration (see ECF No. 12-1), are unpersuasive at best and wax plaintive at worst. 19 Ultimately, Attorney Rudin blames the slow nature of the U.S. Mail, or “snail mail” as he 20 so informally calls it (see ECF No. 12 at 5, 6), as well as his failure to “anticipate a need for more 21 communication [with plaintiff]” than a single exchange of letters, and/or his failure to set up a 22 confidential phone call with plaintiff to timely determine how plaintiff wanted to proceed with his 23 complaint as reasons why the notice was not filed within the court-ordered two-week time frame. 24 See generally ECF No. 12-1 (brackets added). Because of these failings, the instant findings and 25 recommendations issued. 26 While the reasons counsel presents for not having filed plaintiff’s notice on how to 27 proceed within the time allotted are understandable, they do not rise to the level of “excusable 28 neglect” under Federal Rule of Civil Procedure 6(b)(1)(B) to warrant a grant of an extension of 1 time to file the notice. This is because irrespective of the fact that Attorney Rudin received a 2 response from plaintiff about the court’s screening order and/or how plaintiff wished to proceed 3 on May 27, 2021 – a mere five days before the fourteen-day period was to expire – from the day 4 the screening order issued, counsel always had the option of requesting an extension of time to 5 file the notice. Curiously enough, although counsel acknowledges the fact that he could have 6 done this on plaintiff’s behalf prior to the expiration of the fourteen-day period (see ECF No. 12-1 7 at 3), he fails to state why he did not do so (see generally ECF No. 12-1). 8 Each year, thousands of prisoners who are indigent and unable to afford counsel – the vast 9 majority of whom only have a high school education or less – file their cases in this court with the 10 hope that they will receive justice. Despite their lack of resources, post-secondary education, and 11 legal representation, most of them manage to file motions for extensions of time in their cases 12 when necessary, and they do so in a timely manner. In this case, Attorney Rudin could have done 13 the same. No acceptable excuse has been offered on his part that indicates otherwise. See 14 generally ECF No. 12-1. 15 For these reasons, the court does not find that Attorney Rudin’s reasons for failing to 16 timely file a request for an extension of time to file plaintiff’s notice on how to proceed constitute 17 the “excusable neglect” that permits a grant of an after-the-fact extension of time to do so under 18 Federal Rule of Civil Procedure 6(b)(1)(B). Accordingly, counsel’s request to receive an 19 extension of time based on this ground will be denied. 20 2. Interests of Justice Warrant Grant of Extension of Time Nunc Pro Tunc 21 Despite the aforementioned determination, the court does agree with Attorney Rudin’s 22 statement that plaintiff should not lose his opportunity due to Rudin’s inexcusable mistake. See 23 ECF No. 12 at 6. Accordingly, the court finds that the interests of justice independently warrant 24 plaintiff’s notice on how to proceed to be filed and reviewed nunc pro tunc. To that end, the 25 magistrate judge’s findings and recommendations will be not be adopted in order to permit 26 plaintiff to file an amended complaint. To that end, the magistrate judge will be directed to issue 27 an order that gives plaintiff a reasonable amount of time to do so. 28 //// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations issued June 9, 2021 (ECF No. 11), are NOT 3 ADOPTED, and; 4 2. Plaintiff’s request for an extension of time to file the notice on how to proceed 5 pursuant to the “excusable neglect” provision of Federal Rule of Civil Procedure 6(b)(1)(B) (see 6 ECF No. 12 at 3-6) is DENIED. 7 IT IS FURTHER ORDERED that: 8 1. The interests of justice warrant permitting plaintiff’s untimely filed notice on how to 9 proceed (see ECF No. 14) to be reviewed and considered nunc pro tunc, and 10 2. The magistrate judge assigned to this action is directed to promptly review and 11 consider plaintiff’s notice on how to proceed (ECF No. 14) and, thereafter, to permit plaintiff to 12 file an amended complaint within a reasonable amount of time. 13 14 DATED: June 28, 2021 /s/ John A. Mendez 15 THE HONORABLE JOHN A. MENDEZ 16 UNITED STATES DISTRICT COURT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28