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United States v. Molen

United States District Court, Ninth Circuit

December 12, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES O. MOLEN, et al., Defendants.

ORDER AND ORDER TO SHOW CAUSE

KENDALL J. NEWMAN, Magistrate Judge.

Defendant James Molen ("defendant") is proceeding without counsel in this action.[1] On November 22, 2013, plaintiff the United States ("plaintiff") filed a Motion For Partial Summary Judgment. (Mot. for Summ. J., ECF No. 148.) However, as defendant points out in his Opposition brief of December 5, 2013 (Opp'n, ECF No. 155), plaintiff filed its motion one day after the deadline for the filing of dispositive motions. (See ECF No. 147 (setting the deadline for filing dispositive motions as "no later than" November 21, 2013).) Plaintiff's moving papers neither acknowledge the filing's tardiness nor offer an explanation for such tardiness. While the undersigned's prior order stated that extensions could be requested to help accommodate delays resulting from the Federal Government "Shutdown" (id. at 3 n.5), the court's electronic docket does not reflect that plaintiff ever filed any formal requests for extensions.

I. BACKGROUND

On April 11, 2013, the court issued an order giving the parties until September 20, 2013, to file "all dispositive motions." (ECF No. 132 at 2.) Plaintiff filed a motion for partial summary judgment on September 20, 2013. (ECF No. 139.) On September 25, United States District Judge Morrison C. England sua sponte moved the trial date from February 3, 2014, to August 4, 2014. (ECF Nos. 122, 144.) Additionally, Judge England notified parties that their Joint Final Pretrial Statement will be due no later than May 22, 2014. (Id.)

After reviewing plaintiff's motion for partial summary judgment, the undersigned sua sponte scheduled a status conference to facilitate the defendant's response thereto, especially given defendant's pro se status. (ECF Nos. 139-1, 139-2, 139-3, 145.) As expressed at the hearing, the undersigned was concerned that defendant would have unnecessary difficulty appropriately responding to the motion. (ECF No. 146.)

The status conference came on for hearing on October 3, 2013. (Id.) Defendant appeared telephonically on his own behalf. (Id.) Attorney Guy Patrick Jennings appeared on behalf of the plaintiff. (Id.) During the status conference, plaintiff and defendant jointly requested that plaintiff be permitted to withdraw its motion for partial summary judgment and to re-file a more straightforward motion. (ECF No. 139, 146.) In light of the joint nature of the request and in the interests of judicial economy, and given that defendant reported having not been served with the moving papers, the request was granted. (ECF No. 147.) The undersigned also found that there was good cause to amend his scheduling order (ECF No. 132) and to continue the deadline for filing dispositive motions from September 20, 2013, to November 21, 2013.[2] (Id.) The undersigned set the hearing on the revised motion for partial summary judgment on January 23, 2014. (Id.)

II. DISCUSSION

Given that the pending motion was filed one day after the deadline of November 21, 2013, plaintiff is ordered to show cause in writing on or before January 16, 2014, why the court should deem the late-filed Motion for Partial Summary Judgment (ECF No. 148) as timely, and to show cause in writing why the court should make any determination as to the merits of the late-filed motion.

Likewise, on or before January 16, 2014, defendant shall file a declaration describing what prejudice, if any, he has suffered by the pending motion's having been filed one day late. If defendant has not suffered any prejudice by the late filing, defendant should say so.

In addition, defendant's Opposition (ECF No. 155) focuses primarily on the pending motion's tardiness and raises discovery arguments, but does not address the substantive merits of the pending motion. Without making any pre-determination as to whether the pending motion might be deemed timely, the undersigned nonetheless orders defendant to file an Amended Opposition that substantively addresses the arguments and factual/evidentiary assertions made in the pending motion and complies with the requirements of Federal Rule of Civil Procedure 56 and Eastern District Local Rule 260(b), including but not limited to the filing of a Separate Statement of Disputed Facts. The Amended Opposition shall be filed on or before February 6, 2014.

The pending motion's currently scheduled hearing date of January 23, 2014, is hereby continued to March 13, 2014. Plaintiff's Reply to defendant's above-described Amended Opposition shall be filed on or before February 13, 2014. The undersigned's setting a hearing date and a deadline to file the Reply should not be construed as a pre-determination that the late-filed motion will necessarily be deemed timely. The undersigned sets these dates for planning purposes only, and should the undersigned determine that the pending motion should be denied on grounds of untimeliness, the undersigned will vacate these dates by way of a written order. Absent such order, the parties should plan to adhere to this timeline.

III. CONCLUSION

Accordingly, IS HEREBY ORDERED that:

1. On or before January 16, 2014, plaintiff shall show cause in writing why the court should deem the late-filed Motion for Partial Summary Judgment (ECF No. 148) as timely, and shall also show cause in writing why the court should make any determination as to the merits of the motion.
2. On or before January 16, 2014, defendant shall file a declaration explaining what prejudice, if any, he has suffered by the pending motion's having been filed one day late.
3. Without making any pre-determination as to whether the pending motion might be deemed timely, the undersigned orders defendant to file an Amended Opposition that substantively addresses the arguments and factual/evidentiary assertions made in the pending motion and complies with the requirements of Federal Rule of Civil Procedure 56 and Eastern District Local Rule 260(b), including but not limited to the filing of a Separate Statement of Disputed Facts. The Amended Opposition shall be filed on or before February 6, 2014. The undersigned's ordering the filing of an Amended Opposition should not be construed as a pre-determination that the late-filed motion will necessarily be deemed timely.
4. On or before February 13, 2014, plaintiff may file Reply briefing to address defendant's above-described Amended Opposition. The undersigned's setting a deadline to file Reply briefing should not be construed as a pre-determination that the late-filed motion will necessarily be deemed timely
5. The hearing on plaintiff's Motion for Partial Summary Judgment (ECF No. 148) currently set for January 23, 2014, is CONTINUED to March 13, 2014, at 10:00 a.m., in Courtroom 25. The undersigned's setting such hearing date should not be construed as a pre-determination that the late-filed motion will necessarily be deemed timely.

IT IS SO ORDERED.


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