Opinion
Case No.: 2:17-cv-02651-GMN-VCF
06-12-2018
SWITCH, LTD. a Nevada limited liability company, Plaintiff, v. STEPHEN FAIRFAX; MTECHNOLOGY; and DOES 1 through 10; ROE ENTITIES 11 through 20, inclusive, Defendants.
Samuel Castor, Esq. Nevada Bar No. 11532 SWITCH, LTD. 7135 S. Decatur Blvd. Las Vegas, Nevada 89118 F. Christopher Austin, Esq. Nevada Bar No. 6559 caustin@weidemiller.com WEIDE & MILLER, LTD. 10655 Park Run Drive, Suite 100 Las Vegas, NV 89144 Tel: (702) 382-4804 Fax: (702) 382-4805 Attorneys for Plaintiff SWITCH, LTD.
Samuel Castor, Esq.
Nevada Bar No. 11532
SWITCH , LTD.
7135 S. Decatur Blvd.
Las Vegas, Nevada 89118 F. Christopher Austin, Esq.
Nevada Bar No. 6559
caustin@weidemiller.com
WEIDE & MILLER, LTD.
10655 Park Run Drive, Suite 100
Las Vegas, NV 89144
Tel: (702) 382-4804
Fax: (702) 382-4805 Attorneys for Plaintiff SWITCH, LTD.
PLAINTIFF'S UNOPPOSED MOTION TO EXTEND TIME TO FILE OPPOSITION TO DEFENDANTS' MOTION FOR TEMPORARY STAY OF DISCOVERY
(First Request)
Plaintiff Switch, Ltd. ("Switch"), hereby files an unopposed motion to extend the deadline to file its opposition to Defendants' Motion for a Temporary Stay of Discovery (ECF No. 22) ("Motion to Stay") from May 29, 2018 to June 4, 2018. This Motion is brought under Fed.R.Civ.P. 6(b) and is supported by the attached declaration of F. Christopher Austin and the following Memorandum of Points and Authorities. This is the first request for such and extension.
I. BACKGROUND
Defendants filed their Motion to Stay on May 15, 2018, making the opposition due on May 29th. The deadline, however, was calendared one day later on May 30th due to an error in not including Memorial Day in the calculation. Plaintiff seeks an extension to June 4, 2018, in order to consult with counsel on the content of the opposition. As set forth in the Declaration of Mr. Austin and email correspondence from opposing counsel, Defendants do not oppose this request. (See Austin Decl. attached as Exhibit 1; see also email correspondence with R. Green, counsel for Defendants, attached as Exhibit 2.)
II. LEGAL ARGUMENT
Rule 6(b) permits the Court to extend the time to file an opposition upon a showing of good cause and excusable neglect. Fed.R.Civ.P. 6(b)(1)(B).
"'Good cause' is a non-rigorous standard that has been construed broadly across procedural and statutory contexts." Id. citing Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010) (discussing "good cause" in the context of Fed. R. Civ. P. 6(b)(1)). It generally involves a case-by-case assessment of whether there is some good reason for the delay or requested extension in the absence of bad faith and prejudice to the non-moving party. See id. at 1109-1110.
In assessing "excusable neglect," "courts must apply a four-factor equitable test, examining: (1) the danger of prejudice to the opposing party; (2) the length of delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith." Sandy v. Sunmoon Freight, Inc., 714 Fed. Appx. 678, 681, (9th Cir., 2017) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993); Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997)).
The Ninth Circuit has previously held that docketing errors can be a basis for excusable neglect. M.D. v. Newport-Mesa Unified Sch. Dist., 2016 U.S. App. LEXIS 21261, *8, citing e.g., Pincay v. Andrews, 389 F.3d 853, 855, 858-60 (9th Cir. 2004) (en banc) (affirming the district court's finding of excusable neglect where a sophisticated law firm made a calendaring error based on a paralegal's misreading of FRAP 4.). "[E]xcusable neglect under the federal rules 'is a somewhat elastic concept and is not limited strictly to omissions caused by circumstances beyond the control of the movant'" and that extensions are permitted "even when counsel makes an unreasonable mistake." Phillips v. Gilman (In re Gilman), 887 F.3d 956, 963-964, 2018, citing Pioneer Inv. Servs. Co., 507 U.S. at 394, 113 S. Ct. 1489. This is because, the overriding policy is that cases be resolved on their merits where doing so will not prejudice the opposing party or negatively impact the proceedings. Id. ("Moreover, we prefer to resolve cases on the merits"), referencing United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010).
As applied to Plaintiff, the relevant circumstances weigh in favor of granting the requested extension. Defendants do not oppose the requested extension, so there is no danger of prejudice to the opposing party (factor 1). The requested extension is short, ony four judicial days, and will have no impact on the proceedings (factor 2). The docketing error should have been avoided, reviewed, caught and corrected, but given the circumstances, the one-day error is understandable (factor 3) and not the result of bad faith or ill intent (factor 4). The same is also true under the less rigorous "good cause" standard. To the extent that an assessment of good cause is also an assessment of whether there is some good reason for the delay or requested extension in the absence of bad faith and prejudice to the non-moving party, see Ahanchian, 624 F.3d at 1259, these factors are shown by the foregoing discussion.
III. CONCLUSION
For the reasons set forth herein, Plaintiff respectfully requests the Court grant its unopposed motion for 6-day extension to Monday June 4, 2018, to file an opposition to Defendants' Motion to Stay (ECF No. 22).
Dated: May 30, 2018.
Respectfully Submitted,
/s/ F . Christopher Austin
F. Christopher Austin (NV Bar No. 6559)
caustin@weidemiller.com
WEIDE & MILLER. LTD.
10655 Park Run Drive, Suite 100
Las Vegas, NV 89144
Tel: 702-382-4804
Fax: 702-382-4805
Attorneys for Plaintiff Switch, Ltd.
IT IS SO ORDERED.
/s/ _________
UNITED STATES MAGISTRATE JUDGE
DATED: 6-12-2018
CERTIFICATE OF SERVICE
I hereby certify that I am an employee of WEIDE & MILLER, LTD. and that on May 31, 2018, I served a full, true and correct copy of the foregoing UNOPPOSED MOTION TO EXTEND TIME TO FILE OPPOSITION TO DEFENDANTS' MOTION FOR TEMPORARY STAY OF DISCOVERY via CM-ECF to the addressees listed below:
Marc J. Randazza, Esq.
Ronald D. Green, Esq.
Alex J. Shepard, Esq.
Randazza Legal Group, PLLC
2764 Lake Sahara Drive, Suite 109
702-420-2001
efc@randazza.com
Attorneys for Defendants STEPHEN
FAIRFAX and MTECHNOLOGY
/s/ F . Christopher Austin
An employee of Weide & Miller, Ltd.
EXHIBIT 1
F. Christopher Austin, Esq.
Nevada Bar No. 6559
caustin@weidemiller.com
WEIDE & MILLER, LTD.
10655 Park Run Drive, Suite 100
Las Vegas, NV 89144
Tel: (702) 382-4804
Fax: (702) 382-4805 Attorneys for Plaintiff Criminal Productions, Inc.
DECLARATION OF F. CHRISTOPHER AUSTIN IN SUPPORT PLAINTIFF'S UNOPPOSED MOTION TO EXTEND TIME TO FILE OPPOSITION TO DEFENDANTS' MOTION FOR TEMPORARY STAY OF DISCOVERY
I, F. Christopher Austin, declare under penalty of perjury under the laws of the United States that the following is true and correct:
1. I am counsel for Plaintiff, Switch, Ltd. ("Switch") in the above captioned matter. I am over the age of 21, under no disability, and am competent to testify to the matters contained in this declaration. I make this declaration in support of Plaintiff's Unopposed Motion for Extension of Time to File Opposition to Defendants' Motion for Temporary Stay of Discovery (ECF No. 22).
2. Defendants filed their Motion to Stay on May 15, 2018, making the opposition due on May 29th. The deadline, however, was calendared by my firm one day later on the 30th due to an error in not including Memorial Day in the calculation. As the attorney of record for this case, I am personally responsible for this docketing entry and should have made sure the correct date was entered or the error caught and corrected. However, I did not notice the error until it was brought to my attention by opposing counsel, Ron Green.
3. I emailed Mr. Green on the 30th to request an extension to June 4, 2018, to file the opposition to Defendants' Motion for a Temporary Stay (ECF No. 22), so that Switch's inhouse counsel, who is out of state this week, could consult with me on the content of the opposition prior to its filing. Mr. Green informed me that although our opposition was a day late, Defendants would not oppose the requested extension. True and accurate copies of our email correspondence is attached hereto as Exhibit 2.
4. I certify that this request is made in good faith and not with any intent to delay or gain an advantage in this case.
DATED this 30th day of May, 2018.
/s/ F . Christopher Austin
F. Christopher Austin, Esq.
EXHIBIT 2
F. Christopher Austin From: Ron Green <rdg@randazza.com>
Sent: Wednesday, May 30, 2018 1:54 PM
To: F. Christopher Austin
Cc: Marc Randazza; Trey Rothell; Tenny Fauver
Subject: Re: Switch v. Fairfax Chris: Because your request came after the due date for the Opposition, I felt I should run it by my client first. We will not oppose any request that you make to the Court for an extension of your deadline. Feel free to use this email as evidence that we met and conferred regarding the issue. Thanks. Ronald D. Green* | Randazza Legal Group, PLLC
2764 Lake Sahara Drive | Suite 109 | Las Vegas, NV 89117
Tel: 702-420-2001 | Email: rdg@randazza.com * Licensed to practice law in Nevada.
On May 30, 2018, at 12:03 PM, F. Christopher Austin <caustin@weidemiller.com> wrote:
Ron:
Will you all agree to give Switch until Monday to file its opposition to your motion to stay?
Chris
F. Christopher Austin
Weide & Miller, Ltd.
10655 Park Run Drive
Suite 100
Las Vegas NV 89144
702.610.9094 Mobile
702.382.4804 Office
702.382.4805 Fax
caustin@weidemiller.com | www.weidemiller.com
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