noting Rule 6, “like all the Federal Rules of Civil Procedure, [is] to be liberally 5 construed to effectuate the general purpose of seeing that cases are tried on the merits.”
How later courts described this case
- noting Rule 6, “like all the Federal Rules of Civil Procedure, [is] to be liberally 5 construed to effectuate the general purpose of seeing that cases are tried on the merits.”
- noting that 19 “while a calendaring mistake caused by the failure to apply a clear local rule may be a weak 20 justification for an attorney’s delay, we have previously found the identical mistake to be 21 excusable neglect.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
EASTERN DISTRICT OF CALIFORNIA
9
10 CAROLYN BROWN, Case No. 1:20-cv-00186-SAB
11 Plaintiff, ORDER GRANTING DEFENDANT’S EX
PARTE APPLICATION FOR ONE DAY
12 v. EXTENSION OF TIME TO FILE MOTION
FOR LEAVE TO AMEND
13 PROPERTY AND CASUALTY
INSURANCE COMPANY OF HARTFORD, (ECF No. 20)
14
Defendant.
15
16
17 I.
18 BACKGROUND
19 On January 9, 2020, Plaintiff Carolyn Brown (“Plaintiff”), appearing pro se, filed this
20 action in the Superior Court of California, County of Madera. (ECF Nos. 1 at 2; 1-1.) On
21 February 5, 2020, Defendant Property and Casualty Insurance Company of Hartford
22 (“Defendant” or “Hartford”), removed the action to the U.S. District Court for the Eastern
23 District of California. (ECF No. 1.) On June 1, 2020, the Court issued a scheduling order setting
24 a deadline of July 1, 2020, for any motions or stipulations requesting leave to amend the
25 pleadings in this action. (ECF No. 19 at 2.)
26 On July 2, 2020, Defendant filed an ex parte application pursuant to Federal Rule of Civil
27 Procedure 60(b)(1), requesting an extension of the July 1, 2020 deadline for filing motions for
leave to amend. (Def.’s Ex Parte Appl. (“Appl.”), ECF No. 20; Decl. Andrew B. Downs Supp.
1 Ex Parte Appl. (“Downs Decl.”), ECF No. 20-1.) Defendant requests the Court set a deadline of
2 one court day following the Court’s decision on the ex parte application for Defendant to file a
3 motion for leave to file a cross-complaint. (Appl. 1.)
4 Defendant wishes to file a motion for leave to file a cross-complaint against Plaintiff
5 Carolyn Brown, and her daughter Mecca Morgan, who Defendant believes is the real party in
6 interest for most, if not all, of Plaintiff’s claims. (Id. at 3.) Defendant states “[a]s much as
7 anything else, the purpose of the cross-complaint is to clean up the pleadings.” (Id.)
8 Defendant argues filing the ex parte application was necessary due to the error of
9 Defendant’s counsel. (Id.) Counsel argues he was mindful of the July 1, 2020 deadline,
10 prepared the cross-complaint a week prior to the deadline, contacted Plaintiff requesting a
11 stipulation for its filing, and prepared a motion for leave to file the cross-complaint. (Id.; Downs
12 Decl. ¶ 2.) Plaintiff emailed counsel on June 26, 2020, and stated that she would contact counsel
13 via telephone on Monday, June 29, 2020, however, Plaintiff did not do so, and “with the press of
14 other business, [counsel for Defendant] forgot about the motion until” the morning of July 2,
15 2020. (Appl. at 3; Downs Decl. ¶ 3.) Counsel states that he ordinarily manages deadlines using
16 Outlook task reminders, there was one such reminder set for this motion, but it appears he
17 inadvertently dismissed the reminder several days prior this filing. (Downs Decl. ¶ 4.)
18 Counsel acknowledges he forgot about the July 1 deadline until 7:30 a.m. on July 2,
19 emphasizes this was “entirely [his] error,” and that Defendant Hartford did not contribute to the
20 error. (Downs Decl. ¶ 4.) Counsel thus argues relief is proper under Federal Rule of Civil
21 Procedure 60(b)(1), and that neither Defendant, “nor the orderly progress of this matter should be
22 harmed by the undersigned’s error, particularly when the deadline was missed by only one day.”
23 (Appl. at 3-4.)
24 II.
25 DISCUSSION
26 Rule 60 provides that: “On motion and just terms, the court may relieve a party or its
27 legal representative from a final judgment, order, or proceeding . . . [due to] mistake,
1 6(b)(1)(B) (“When an act may or must be done within a specified time, the court may, for good
2 cause, extend the time . . . on motion made after the time has expired if the party failed to act
3 because of excusable neglect.”); Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258–59
4 (9th Cir. 2010) (noting Rule 6, “like all the Federal Rules of Civil Procedure, [is] to be liberally
5 construed to effectuate the general purpose of seeing that cases are tried on the merits.”)
6 (citations and internal quotation marks omitted) (alteration in original). “To determine whether a
7 party’s failure to meet a deadline constitutes ‘excusable neglect,’ courts must apply a four-factor
8 equitable test, examining: (1) the danger of prejudice to the opposing party; (2) the length of the
9 delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether
10 the movant acted in good faith.” Ahanchian, 624 F.3d at 1261. Rule 60(b) is “remedial in
11 nature” and “must be liberally applied.” Id, at 1262.
12 Considering the four factors for excusable neglect, the Court finds Defendant has
13 established excusable neglect, and finds: (1) the danger of prejudice to Plaintiff is slight, if any1;
14 (2) the length of the delay is only one day, and should have minimal, if any, impact on the
15 proceedings; (3) the reason for the delay is justifiable given counsel’s proffered reasons
16 summarized above; and (4) there is no indication Defendant acted in bad faith considering the
17 attempts to stipulate to the extension, and immediate filing of the ex parte application the
18 morning following the expiration of the deadline. See Ahanchian, 624 F.3d at 1262 (noting that
19 “while a calendaring mistake caused by the failure to apply a clear local rule may be a weak
20 justification for an attorney’s delay, we have previously found the identical mistake to be
21 excusable neglect.”)
22 ///
23 ///
24 ///
25 ///
26
1 Plaintiff has been provided notice of the ex parte application. (Downs Decl. ¶ 5.) Rather than further delaying
27 proceedings waiting for a response to the instant application from Plaintiff, the Court shall grant the requested one
day extension. To the extent Plaintiff may be prejudiced by the extension, she may raise any such objection in
wOoOe UVM EO SAD MVOC oh POO Ie AY ST
1 Ii.
2 ORDER
3 Accordingly, IT IS HEREBY ORDERED that:
4 1. Defendant’s ex parte application is GRANTED; and
5 2. Defendant shall file a motion for leave to amend within one (1) court day after
6 entry of this order.
7
8 IT IS SO ORDERED. OF. a Se
9 | Dated: _July 2, 2020 _ ef
0 UNITED STATES MAGISTRATE JUDGE
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28