Opinion
Case No. 2:06-cv-92.
April 24, 2006
In support of Petitioner's Robert Alspaugh's Motion for Enlargement of Time, he relies on the provision of Rule 6(b) of the Federal Rules of civil Procedures, which provides, in pertinent part:
"When by these rules or by a notice given thereafter or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if requested therefore is made before the expiration of the period originally prescribed or as extend by a previous order or (2) upon motion made after expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under rule 50(b) and (c)(d), 52(b), 59(b) and (e), 60(b), and 74(a), except to the extent and under condition state in them."
A formal motion is not necessary under Rule 6(b) if the request for extension of time is made prior to the expiration of the time originally prescribed by the rules. Boulton v. Pacific Mutual Life Insurance Co., 4 FRD 2000 (D.C., NC. 1944). In this matter, Petitioner Robert Alspaugh makes this request before the time has expired to file a written response/objection.
If a request is made in a timely fashion under Rule 6(b), and if the delay sought by a Petitioner is not attributable to bad faith and will not operate to substantially prejudice Respondent, and extension of time is usually granted on the showing of good cause. Creedon v. Taubman, 8 FRD (D.C. Ohio, 1947).
RELIEF SOUGHT
WHEREFORE, Petitioner, Robert Alspaugh Jr., prays this Honorable court "GRANT" him the additional thirty (30) day extension/enlargement of time requested in his motion in order to allow him to prepare and file a persuasive Answer in response to the Magistrate's Report and Recommendation.