United States District Court, N.D. California
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
FILE OPPOSITION AND GRANTING IN PART DEFENDANT'S MOTION
FOR ATTORNEYS' FEES AND COSTS Re: Dkt. Nos. 103,
Haywood S. Gilliam, Jr. United States District Judge.
before the Court is Defendant Uber Technologies, Inc.'s
motion for attorneys' fees and costs. See Dkt.
No. 103. Because Plaintiff TSI USA LLC failed to oppose the
motion by the October 22, 2019, deadline, it also filed a
motion for leave to file a belated opposition to the motion
for attorneys' fees. See Dkt. No. 113. The Court
finds this matter appropriate for disposition without oral
argument and the matter is deemed submitted. See
Civil L.R. 7-1(b). As discussed in more detail below, the
Court GRANTS Plaintiff's motion for
leave to oppose the motion for attorneys' fees and
considers the opposition submitted. Even considering the
opposition, however, the Court GRANTS IN
PART Defendant's motion for attorneys' fees
and costs, and provides Defendant an opportunity to respond
to Plaintiff's opposition brief.
Motion for Attorneys' Fees
16, 2019, Defendant moved to dismiss Plaintiff's fraud
and defamation claims, as well as its prayer for
attorneys' fees and exemplary damages alleged in the
Second Amended Complaint (“SAC”). See
Dkt. No. 90. Plaintiff failed to oppose the motion. Only
after the Court issued an order to show cause did Plaintiff
acknowledge that it was not opposing the motion. See
Dkt. Nos. 94, 95. The Court therefore granted Defendant's
motion to dismiss on September 17, 2019. See Dkt.
No. 100. Defendant then filed the instant motion to recover
attorneys' fees and costs associated with its efforts to
file the unopposed motion to dismiss. See Dkt. No.
103. Yet again, Plaintiff failed to oppose the motion for
attorneys' fees by the deadline. See Civil L.R.
7-3(a)-(b). Defendant filed a reply brief, see Dkt.
No. 107, and still Plaintiff did not respond.
Plaintiff's Local Counsel
parallel, Plaintiff's local counsel Edwin Prather, from
Prather Law Offices, sought leave to withdraw as counsel on
May 30, 2019. See Dkt. No. 91. Since that time, the
Court twice directed Plaintiff to retain new local counsel.
First, in granting the motion to withdraw on May 31,
2019, the Court ordered Plaintiff to “retain new local
co-counsel within 30 days to comply with Local Civil Rule
11-3(a)(3), regarding Pro Hac Vice requirements.”
See Dkt. No. 92 at 4. Second, in its order
granting Defendant's motion to dismiss on September 17,
2019, the Court directed Plaintiff to retain local counsel by
the October 8, 2019, case management conference. See
Dkt. No. 100 at 2. During the case management conference, Mr.
Steven Shebar represented to the Court that he anticipated
having a signed engagement by local counsel that week. Yet
Plaintiff did not file an appearance of local counsel for
over a month after that representation. On November 20, 2019,
Defendant filed an administrative motion with the Court
asking for guidance as to how to proceed given that Plaintiff
still lacked local counsel. See Dkt. No. 108. Only
after Defendant's administrative motion did
Plaintiff's local counsel, Mr. Loren Hamilton McRoss,
file a notice of appearance later that same day. See
Dkt. No. 109.
Motion for Leave to File Opposition to Motion for
light of these filings, the Court set a case management
conference for November 26, 2019. See Dkt. No. 110.
At the hearing, Mr. McRoss appeared for Plaintiff and raised
for the first time that Plaintiff intended to seek leave to
file a late opposition to Defendant's motion for
attorneys' fees and costs. Over a week later, Plaintiff
filed the motion for leave to file the opposition.
See Dkt. No. 113. In the motion, Mr. Shebar stated
that he had unanticipated family matters that required his
attention beginning on October 10, 2019. See Dkt.
Nos. 113 at 2, 113-2 at ¶¶ 1-5. He further stated
that “he has attempted in good faith, to the best of
his ability, to complete work on [the opposition to the
motion for attorneys' fees] as quickly as
possible.” See id. Defendant has
opposed the motion. See Dkt. No. 114.
Motion for Leave to File Opposition
seeks leave to file an opposition to Defendant's motion
for attorneys' fees almost seven weeks after its original
due date. See Dkt. No. 113. Under Federal Rule of
Civil Procedure 6, a court may, for good cause, extend a
deadline “on motion made after the time has expired if
the party failed to act because of excusable neglect.”
See Fed. R. Civ. P. 6(b)(1)(B). To determine whether
neglect is excusable, the court may consider various factors,
including: (1) “the danger of prejudice to the opposing
party; (2) the length of the delay and its potential impact
on the proceedings; (3) the reason for the delay; and (4)
whether the movant acted in good faith.” See
Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223-24
(9th Cir. 2000) (citing Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395
Plaintiff contends that excusable neglect exists because Mr.
Shebar was dealing with a family emergency from early October
to early December 2019. See Dkt. Nos. 113 at 2,
113-2 at ¶¶ 1-5. Consequently, he was unable to
meet the October 22, 2019, opposition deadline. The Court
finds that Plaintiff has demonstrated excusable neglect under
the circumstances. Although Plaintiff delayed seeking an
extension of time for its opposition for several weeks, the
Court finds that the reason for Plaintiff's delay was
unanticipated and significant. Moreover, the opposition at
issue here is for a motion for attorneys' fees, unrelated
to the merits of the case, that was not noticed for argument
until February 2020. To the extent Defendant has raised
concerns about possible prejudice from a delay in discovery,
the Court has already extended the fact discovery deadline to
March 16, 2020. See Dkt. No. 112. The parties
therefore still have ample time to prepare in advance of the
June 4, 2020, dispositive motions hearing deadline and the
September 14, 2020, trial. See Dkt. No. 105.
Court accordingly exercises its discretion and
GRANTS Plaintiff's motion for leave to
file its opposition, and deems it filed at Dkt. No. 113-1,
Ex. A. The ...