Opinion
2:20-cv-00089-JAD-BNW
01-25-2022
JEREMY BRYSON, Plaintiff, v. ZUNIGA, et al., Defendants.
AARON D. FORD Attorney General CHRIS DAVIS (NV Bar No. 6616) Deputy Attorney General State of Nevada Office of the Attorney General Attorneys for Defendants James Dzurenda, Brian Williams, and Christopher Zuniga
AARON D. FORD
Attorney General
CHRIS DAVIS (NV Bar No. 6616)
Deputy Attorney General
State of Nevada Office of the Attorney General
Attorneys for Defendants
James Dzurenda, Brian Williams, and Christopher Zuniga
DEFENDANTS' MOTION TO EXTEND DISPOSITIVE MOTIONS DEADLINE ESTABLISHED BY COURT ORDER (ECF NO. 29) (SECOND REQUEST)
The parties stipulated to extend discovery on September 21, 2021. See ECF No. 28. This is the first request to extend the dispositive motion deadline.
BRENDA WEKSLER, UNITED STATES MAGISTRATE JUDGE
James Dzurenda, Brian Williams, and Christopher Zuniga, by and through counsel, Aaron D. Ford, Attorney General of the State of Nevada, and Chris Davis, Deputy Attorney General, hereby moves, pursuant to Fed.R.Civ.P. 6(b) and 16(b)(4) and Local Rules IA 6-1 and LR 26-3 to extend the dispositive motions deadline established by Court Order (ECF No. 29) by sixty (60) days from Monday, January 24, 2022, to Friday, March 25, 2022. This motion is brought based on the following Points and Authorities, the good cause set forth in the Declaration of Chris Davis Esq., and the pleadings and papers filed in this matter.
DECLARATION OF CHRIS DAVIS, ESQ.
I, Chris Davis, declare under penalty of perjury that the following is true and correct of my own personal knowledge and if called to testify in this matter would testify as follows:
1. I am a Deputy Attorney assigned to represent the Defendants James Dzurenda, Brian Williams, and Christopher Zuniga in this matter.
2. I was hired by the Office of Attorney General on September 13, 2021, and began working in the post-conviction habeas unit. Because of a shortage of attorneys representing the Nevada Department of Corrections (NDOC). I volunteered to transfer to the NDOC unit, and was scheduled to begin on November 29, 2021.
3. On November 19, 2021, however, my father passed away due to Covid related illness. As a result, I was required to take personal leave in order to manage my father's funeral arrangements. That personal leave required me to delay my transfer until December 6, 2021, while still working for the Attorney General's post-conviction habeas unit. I was effectively handling a double case load until December 23, 2021, when I completed my last assignment for the post-conviction unit for the Office of the Attorney General.
4. In December 2021, Deputy Attorney General Frank DiMaggio, the attorney assigned to this matter announced his resignation, and on December 28, 2021, this matter was assigned to me. In addition to my significant case load, I immediately began reviewing the file in this matter.
5. Upon review, I discovered that Plaintiff had been paroled on November 22, 2021 (Ex. A Case Note at 3), but did not update his address with the Court. As consequence, on December 17, 2021, this Court entered an order requiring Plaintiff to “file his current address with the Court by January 7, 2022, ” and warning that “failure to comply with this Order may result in a recommendation to the District Judge that this case be dismissed.” See Order, ECF No. 34.
6. Unbeknownst to me, on December 2, 2021, Plaintiff was arrested by the National Park Services, after recklessly driving over Hoover Dam and refusing to stop. See Ex. B, Non-Technical Violation Report, at 1. Plaintiff was charged with driving under the influence, reckless driving, and trespass, and found with drug paraphernalia. See Ex. B, Non-Technical Violation Report, at 1. Plaintiff was held in federal custody at the federal courthouse, located at 333 S. Las Vegas Blvd. See Ex. B, Non- Technical Violation Report, at 1. On December 29, 2021, a warrant for retaking paroled prisoner was issued. See Ex. C, Warrant. After being transferred to the Clark County Detention Center for pick up, Plaintiff was returned to High Desert State Prison (HDSP) on January 10, 2022. See Ex. A Case Note at 3. On that same day, the Magistrate Judge entered a Report (ECF No. 36) recommending that this “case be dismissed without prejudice” for the failure to update his address by January 7, 2021.
7. Because this case had been recommended for dismissal, I opted not to prepare a motion for summary judgment and focus my attention on other cases that were more pressing. On January 24, 2022, I reviewed the file to determine if Plaintiff had objected to the recommendation to dismiss. I discovered that on January 18, 2022, Plaintiff filed an objection to the report and recommendation. Plaintiff, however, does not dispute that he failed to update his address while out on parole or provide any excuse for failing to do so. Instead, Plaintiff wrongly insinuates that he has been on covid-19 lockdown at the Clark County Detention Center (CCDC), which prevented him from updating his address, without any explanation why Plaintiff failed to update his address while he was out on parole for 11 days. See Written Objection, ECF No. 37.
8. Upon discovering Plaintiff's objection, I conducted an investigation to determine the facts surrounding why Plaintiff was no longer on parole, the results of which are set forth above. I also attempted to contact Plaintiff to determine whether he would be willing to stipulate to an extension. I however, was unable to do so due to regulations requiring at least one day notice for covid testing prior to scheduling a telephonic meeting.
9. While I have diligently pursued the cases assigned to me, including this one, my ability to do so has also been hindered by the New Year Holiday, my pre-planned time for my wedding anniversary (January 3rd), and my substantial case load I had taken on when transferring to the NDOC unit. Additionally, shortly after the New Year, my son, who has a substance abuse problem, relapsed. As this case was recommended for dismissal, I reasonably concluded that my time would be better spent on more pressing matters because any dispositive motion drafted would have required countless hours to review the record and law, but would likely be dismissed as moot based on the recommendation of the Magistrate Judge.
10. Based on the forgoing, good cause is present to grant an extension of sixty (60) days. Counsel for Defendants reasonably concluded that this case was subject to dismissal and that Defendants should not pursue a motion for summary judgment until the district court resolves Plaintiff's objection to the Report and Recommendation, where in the Magistrate Judge recommended dismissal based on Plaintiff's unexplained failure to update his address while on parole. Sixty (60) days is reasonable based on the time required for the district court to resolve the objection, the long hours necessary to draft a dispositive motion due counsel's unfamiliarity with the case, the holidays, and counsel's personal family emergencies.
POINTS AND AUTHORITY
Pursuant to Fed.R.Civ.P. 6(b), the “court may, for good cause, extend the time . . . with or without motion or notice . . . if a request is made, before the original time or its extension expires.” Defendant seeks a sixty (60) day extension to the dispositive motion deadline which is set for today, January 24, 2022. Good cause is present to grant an extension of sixty (60) days to file Defendant's motion for summary judgment. Counsel for Defendant has only been recently assigned to this case. This case had been recommended for dismissal, and the district court has not yet determined whether to adopt that recommendation. Dispositive motions should not be filed until this Court determines whether dismissal is appropriate based on Plaintiff's unexplained failure to update his address while he was on parole. To do otherwise, would have required Counsel for the Defendant to spend countless hours preparing a dispositive motion which ultimately would be moot if the Court adopts the Report and Recommendation. Counsel for Defendants reasonably concluded that the countless hours required to familiarize himself with the facts and legal issues in this case would be better used in pursuing more pressing matters, which have been made all the more pressing by his father's passing causing a double workload, the holidays, and his personal family emergencies. Accordingly, Defendant respectfully requests that the extension be granted for good cause. See Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1260, (9th Cir. 2010) (holding that the “district court abused its discretion in denying party's timely motion” to extend time because the party “demonstrated the ‘good cause' required by Rule 6, and because there was no reason to believe that [the party] was acting in bad faith or was misrepresenting his reasons for asking for the extension”).
CONCLUSION
For the forgoing reasons, and for good cause appearing, the Defendants request an extension as follows:
1. The time for the parties to file any dispositive motion be extended by sixty (60) days from Monday, January 24, 2022, to Friday, March 25, 2022.
2. If no dispositive motions are filed, the Joint Pretrial Order shall be filed on or before Monday, April 25, 2022. If the parties file dispositive motions, the Joint Pretrial Order shall be filed thirty (30) days after the Court serves its order disposing of the dispositive motions, or further Court order.
ORDER
Good cause appearing, IT IS ORDERED that ECF No. 38 is GRANTED.
IT IS SO ORDERED
Exhibit A
(Exhibit A Omitted)
Exhibit B
(Exhibit B Omitted)
Exhibit C
(Exhibit C Omitted)