Summary
granting leave to file an untimely opposition despite counsel's negligence because there was no indication that counsel did not act in good faith
Summary of this case from Armstrong v. Hartford Life & Accident Ins. Co.Opinion
2:07-CV-1243-GEB-DAD.
March 6, 2008
ORDER
This matter was determined to be suitable for decision without oral argument. L.R. 78-230(h).
On March 4, 2008, Plaintiffs moved for leave to file an untimely opposition to Defendants' motions to dismiss and to transfer venue. Defendants' motions were set for hearing on March 10, 2008.
Plaintiffs argue leave should be granted since their failure to file a timely opposition resulted from excusable neglect. (Pls.' Mot. at 2:23.) Plaintiffs' counsel offers the following explanation for its failure to file a timely opposition: a paralegal in Plaintiffs' counsel's office incorrectly calendared the opposition due date for March 7, 2008; generally, due dates are also checked by an attorney; the opposition due date was not checked by an attorney because the primary responsibility on this action was transferred to a different attorney in the same firm after Defendants' motions were filed, and each attorney thought the other had checked the opposition due date. (Id. at 2:2-20; Decl. Jay T. Jambeck in Supp. of Pls.' Mot. ¶¶ 3-6.)
Under Federal Rule of Civil Procedure 6(b), Plaintiffs may be granted an extension of time "if [Plaintiffs] failed to act because of excusable neglect." Fed.R.Civ.P. 6(b); see Hill v. England, 2007 WL 3132930, at *2 (E.D. Cal. Oct. 23, 2007) (applying "excusable neglect" standard to plaintiff's request to file an untimely opposition to defendant's summary judgment motion). The determination whether "excusable neglect" has been established is made by balancing four factors: "(1) the danger of prejudice to the non-moving party, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the moving party's conduct was in good faith." Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)). "[E]xcusable neglect includes 'situations in which the failure to comply with a filing deadline is attributable to negligence.'" Marx v. Loral Corp., 87 F.3d 1049, 1054 (9th Cir. 1996) (quotingPioneer, 507 U.S. at 394).
Plaintiffs argue Defendants will not be prejudiced by permitting Plaintiffs to file an untimely opposition. (Pls.' Mot. at 3:4-10.) Since Plaintiffs request that Defendants be granted additional time to file a reply brief, the "primary impact of the failure of Plaintiffs to timely file an opposition is a delay in the hearing or determination of Defendants' motions." (Id.) Further, the "length of the delay will be minimal, as Plaintiffs are prepared to file their oppositions" immediately. (Id. at 3:11-13.) Although the reason for the delay is Plaintiffs' counsel's negligence, there is no indication that Plaintiffs' counsel did not act in good faith.
Accordingly, Plaintiffs are granted leave to file their opposition to Defendants' motions on or before March 7, 2008. Defendants' reply to Plaintiffs' opposition, if any, shall be filed on or before March 14, 2008.
IT IS SO ORDERED.