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Case 2:12-cv-01238-JCM-VCF Document 23 Filed 08/02/13 Page 1 of 3

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

* * *
ROBERT D. VANNAH, CHARTERED, )
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)
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Plaintiff,

v.

2:12-cv-01238-JCM-VCF

O R D E R

LINCOLN GENERAL INSURANCE )
COMPANY,

) (Emergency Motion for Enlargement of Time
) to File Dispositive Motions #22)

)
)
)

Defendant.

Before the court is defendant Lincoln General Insurance Company’s Emergency Motion for

Enlargement of Time to File Dispositive Motions. (#22).

Relevant Background

Plaintiff filed his complaint in the Eighth Judicial District Court, Clark County Nevada, on

August 7, 2012. (#1 Exhibit A). The defendant removed the action to this court on July 13, 2012,

based on diversity of citizenship pursuant to 28 U.S.C. § 1332. (#1). The parties filed their discovery

plan and scheduling order on July 25, 2012 (#9), which the court signed the next day (#10). The

discovery plan provided for a discovery cut-off date of January 14, 2013, a dispositive motions deadline

of February 11, 2013, and a Joint Pretrial Order deadline of March 13, 2013. (#10). On January 11,

2013, the defendant filed an emergency motion to reopen discovery. (#12). The court held a hearing

on the motion (#12) on January 16, 2013, and granted in part and denied in part the motion. (#15). The

court held that “Dispositive motions deadline is 4/1/13. If no dispositive motions are filed the joint

pretrial order shall be due 4/15/13. If a dispositive motion is filed, the joint pretrial order will not be due

until 30 days after the decision on the dispositive motion.” Id.

On April 1, 2013, the dispositive motions deadline, defendant filed a motion for summary

judgment. (#16). On April 25, 2013, plaintiff filed an opposition (#17), and on May 13, 2013,

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Case 2:12-cv-01238-JCM-VCF Document 23 Filed 08/02/13 Page 2 of 3

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defendant filed a reply (#18) and exhibits (#19). The court issued an order on July 30, 2013, denying

the motion for summary judgment (#16) without prejudice due to defendant’s failure to authenticate

exhibits as required under Orr v. Bank of America, 285 F.3d 764 (9th Cir. 2002). (#20). On the same

day, the defendant re-filed its motion for summary judgment (#21), properly authenticating the exhibits,

and an emergency motion to extend time to file dispositive motions (#22).1

Emergency Motion for Enlargement of Time to File Dispositive Motion

A.

Argument

Defendant asserts that its original motion for summary judgment was filed by the dispositive

motions deadline of April 1, 2013 (#16), but that it was denied without prejudice (#20) because of

defendant’s “inadvertent failure...to attach the reporter’s certification that the deposition was a true

record of the testimony of the deponent due to a clerical oversight.” (#22). Defendant states that the

motion is brought on an emergency basis because the deadline to file dispositive motions has passed.

Id. Defendant contends that plaintiff will not be prejudiced by the extension, as the renewed motion

for summary judgment (#21) is identical to the original timely filed motion for summary judgment

(#16), with the exception that the deposition is properly authenticated. Id.

B.

Relevant Law/Discussion

Pursuant to Federal Rule of Civil Procedure 6(b), “[w]hen an act may or must be done within

a specified time, the court may, for good cause, extend the time...on motion made after the time has

expired if the party failed to act because of excusable neglect.” The Supreme Court and the Ninth

Circuit recognize that “it is clear that “excusable neglect” under Rule 6(b) is a somewhat “elastic

concept” and is not limited strictly to omissions caused by circumstances beyond the control of the

movant.” Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997)(quoting Pioneer Inv.

1 The defendant filed one document titled “Defendant Lincoln General Insurance Company’s Emergency

Request for Enlargement of Time to File Dispositive Motions and Renewed Motion for Summary Judgment.” As the
motion seeks two forms of relief, on July 31, 2013, the clerk of the court separated the document into two docket entries
in accordance with Special Order 109.

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Case 2:12-cv-01238-JCM-VCF Document 23 Filed 08/02/13 Page 3 of 3

Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 391, 113 S.Ct. 1489, 1496, 123 L.Ed.2d

74 (1993)). “Because Congress has provided no other guideposts for determining what sorts of neglect

will be considered “excusable,” we conclude that the determination is at bottom an equitable one, taking

account of all relevant circumstances surrounding the party's omission.” Id (quoting Pioneer Inv. Servs.

Co., at 395, 113 S. Ct. at 1498)). The court will consider the following non-exhaustive factors in

determining whether “excusable neglect” exists: “the danger of prejudice to the [opposing party], the

length of the delay and its potential impact on judicial proceedings, the reason for the delay, including

whether it was within the reasonable control of the movant, and whether the movant acted in good

faith.” Id.

Taking all of the “relevant circumstances” into account, the court finds that excusable neglect

exists and that granting defendant’s request for extension of time (#22) is warranted. See Id. Defendant

timely filed its dispositive motion (#16), and inadvertently omitted the reporter’s certificate, causing

the District Judge to deny the motion without prejudice (#20). The renewed motion for summary

judgment (#21) and the instant motion for extension of time (#22) were filed only hours after the court

denied the motion for summary judgment (#20). As the renewed motion for summary judgment (#21)

is identical in substance to the original motion (#16), plaintiff will suffer no prejudice and the court

proceedings will not be unnecessarily delayed. The motion for enlargement of time to file dispositive

motions (#22) is granted.

Accordingly, and for good cause shown,

IT IS ORDERED that defendant Lincoln General Insurance Company’s Emergency Motion for

Enlargement of Time to File Dispositive Motions (#22) is GRANTED.

DATED this 2nd day of August, 2013.


CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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