Opinion
21-cv-01218-WQH-MDD
09-23-2021
JOHN DAVID THISTLE, Plaintiff, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; VINA PATEL- MEHTA; KRISTY A. DITZLER; PRIMARY CARE MEDICAL DOCTORS, Defendant.
ORDER
HON. WILLIAM Q. HAYES UNITED STATES DISTRICT COURT
The matter before the Court is Plaintiff John David Thistle's Motion to Continue Complaint. (ECF No. 7).
I. PROCEDURAL BACKGROUND
On July 6, 2021, Plaintiff filed a pro se Complaint against Defendants United States Department of Veterans Affairs, Vina Patel-Mehta, Kristy A. Ditzler, and Primary Care Medical Doctors. (ECF No. 1). On the same day, Plaintiff filed a Motion for Leave to Proceed in Forma Pauperis. (ECF No. 2). On July 7, 2021, Plaintiff filed a Request for Appointment of Counsel. (ECF No. 4)
On July 9, 2021, the Court issued an Order addressing Plaintiff's Motion for Leave to Proceed in Forma Pauperis and Request for Appointment of Counsel. (ECF No. 5). In that Order, the Court screened the case pursuant to 28 U.S.C. § 1915(e)(2) and determined that Plaintiff had failed to state a claim upon which relief could be granted. Id. The Court dismissed the Complaint without prejudice and permitted Plaintiff to file a Motion to File an Amended Complaint within sixty days of the date of that Order. Id.
The sixty-day time period during which Plaintiff was permitted to file a Motion to File an Amended Complaint expired on September 7, 2021. On September 15, 2021, Plaintiff filed a “Motion to Continue Complaint.” (ECF No. 7). In the Motion, Plaintiff “requests a 1 month continuance for a Motion to Continue the Case.” Id. The Court will construe Plaintiff's Motion as seeking an extension of time to file a Motion to File an Amended Complaint.
II. DISCUSSION
Fed. R. Civ. P. 6(b)(1) states:
When an act may or must be done within a specified time, the court may, for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or
(B) on motion made after the time has expired if the party failed to act because of excusable neglect.
Because the original time to file a Motion to File an Amended Complaint has expired, Plaintiff must demonstrate good cause and excusable neglect.
In determining whether a party has failed to act because of excusable neglect, a court must take into account “all relevant circumstances surrounding the party's omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993). This requires consideration of four factors: “(1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010).
Plaintiff contends that his Motion should be granted because of a delay by Defendant United States Department of Veterans Affairs in providing requested medical records that Plaintiff needs to amend his complaint. (ECF No. 7). Plaintiff filed the Motion only eight days after time expired. The length and impact of such a delay is minimal, particularly at such an early stage of litigation. See Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1225 (9th Cir. 2000) (failure to contact the court for 24 days did not constitute a significant delay). Plaintiff's delay is unlikely to prejudice Defendants. Plaintiff's stated reason for the delay does not explain why Plaintiff failed to request an extension prior to the expiration of time. However, it does demonstrate that Plaintiff is acting in good faith. Plaintiff has adequately demonstrated excusable neglect and good cause for extending the time for Plaintiff to file a Motion to File an Amended Complaint.
IT IS HEREBY ORDERED that Plaintiff's Motion to Continue Complaint (ECF No. 7) is granted. Plaintiff John David Thistle may file a Motion to File an Amended Complaint within thirty (30) days of the date of this Order. If no motion is filed, the Clerk of the Court shall close this case.