2 l
3 Los Rios Historic District f
4 31901 Los Rios Street Z
San Juan Capistrano, CA 92675 ;
5 (949) 481-0236 -
6 David F. Gomez (006790)
7 [email protected]
8 Michael J. Petitti, Jr. (011667)
GOMEZ & PETITTI, P.C.
9 2525 East Camelback Road, Suite 860
10 Phoenix, Arizona 85016 Q
g (602) 957-8686 ;
E ll Attorneys for Plaintiff
Eg 2 :2 12 UNITED STATES DISTRICT COURT
Z `° :
E 8 §§ 13 ;
gs Q 5} 14 DISTRICT OF ARIZONA 1
E E §@ `
O E E 15 CONSTANCE ANN MAYNARD, an individual, Case No. CIV 04-525-PHX-RCB
LY-I
E 16 Plaintiff PLAINTIFF’S MOTION FOR
17 v. LEAVE TO FILE
1 8 SUPPLEMENTAL
CNA GROUP LIFE ASSURANCE COMPANY, DECLARATION OF
` 19 an Illinois Corporation; CONTINENTAL PLAIN TIFF AND
20 CASUALTY COMPANY; an Illinois DECLARATION OF STUART _
Corporation; HEWITT ASSOCIATES LLC, an H. SANDHAUS IN SUPPORT
21 Illinois Limited Liability Company; and OF OPPOSITION TO
22 HEWITT LONG TERM DISABILITY PLAN, DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
23 Defendants.
24
25 Plaintiff by and through undersigned counsel, hereby moves the Court for leave
26 to file (1) Supplemental Declaration of Constance Ann Maynard in Support of E
27 Opposition to Dcfcndant’s Motion for Summary Judgment and Supporting Exhibits
28 (attached as Exhibit l), and (2) Declaration Of Stuart H. Sandhaus In Support Of
1
Case 2:04-cv-00525-RCB Document 95 Filed 10/17/2005 Page 1 of 4
1 Plaintiff’ s Opposition To Defendants’ Motion For Summary Judgment And Supporting
2 Exhibits (attached as Exhibit 2). This Motion is made pursuant to Rule 6(b)(2), F ed. R.
3 Civ. P., and is supported by the attached Memorandum of Points and Authorities.
4 Respectfully submitted this 17th day of October, 2005.
5 STUART H. SANDHAUS, P.C.
6 Stuart H. Sandhaus, Esq.
7 [email protected] .
Los Rios Historic District
8 31901 Los Rios Street
9 San Juan Capistrano, CA 92675
10 GOMEZ & PETITTI, P.C.
gf 11 By: s/ David F. Gomez, Esg.
Big § 0 12 David F. Gomez, Esq.
EQ E 13 [email protected]
g § E E Michael J. Pet1tt1, Jr., Esq. _
is Q 14 2525 E. Camelback Road, Suite 860 I
§,<3 § 15 Phoenix, Arizona 85016
E ’°` On behalf of Attorneys for Plaintiff
§ 16
17 MEMORANDUM OF POINTS AND AUTHORITIES
18 Plaintiff filed her Opposition to Defendants’ Motion for Summary Judgment,
19 including her own Declaration, on August 22, 2005, the date specified by Court order ·
20 (signed by the Court on August 22 and filed August 23, 2005). Plaintiff’ s Declaration I
21 (dated August 19, 2005) consisted of two pages and an exhibit. The reason she was I
22 unable to do more was because of her ongoing severe disability. As set forth by her
23 physician, Dr. Daniel L. Peterson, in Exhibit V to the Declaration of Stuart H.
24 Sandhaus, Plaintiff had urological surgery on July 6, 2005 (her fifth since experiencing
25 bladder cancer in 1995) and experienced acute exacerbation of chronic fatigue
26 syndrome with a marked increase in myalgias, arthralgias, fatigue and further decrease
27 in functional status. Until recently, Plaintiff was simply unable to assist counsel in
28
» 2
Case 2:04-cv-00525-RCB Document 95 Filed 10/17/2005 Page 2 of 4
1 preparing her more complete Declaration in Support of the Opposition to the i
2 Defendants’ Motion for Summary Judgment. Over the course of the past several weeks,
3 Plaintiff has been able to confer with counsel and prepare a more comprehensive
4 declaration, which she hereby seeks leave to file.
5 Rule 6(b)(2), Fed. R. Civ. P., provides that the District Court, in its discretion, Z
6 may order an extension of time even after expiration of a specified time period for
7 "cause shown" and if the failure to do so in a timely fashion was the result of
8 "excusable neg1ect."
9 Excusable neglect is an equitable concept that takes account of all relevant g
O 10 circumstances of a parly’s failure to act within the required time. Among such factors
§ ll are: (1) the possibility of prejudice to the other parties, (2) the length of the applicant’s
W 12 delay and its impact on the proceedings, (3) the reason for the delay, (4) whether it was
Ei; 13 within the control of the movant, and (5) whether the moving party acted in good faith.
téggg 14 Kettle Runge Conservation Group v. US. Forest Service and Vuogen Bros. Lumber, :
SE; 15 [nc., 2001 W.L. 409055 (9th Cir. 2001), quoting Pioneer Investment Services Co. v.
§ 16 Brunswick Assoc. Ltd Portnershqa, 507 U.S. 380, 113 S. Ct. 1489, 123 L. Ed. 2d 74 Z
17 (1993). i
18 Defendant will not be prejudiced if the Court permits the filing of the .
19 Declarations of Plaintiff and Attorney Sandhaus. Defendant will have an opportunity in E
20 the near future to reply to Plaintiffs responses to Defendantâ€s motion to strike and
21 Plaintiff will readily agree to an extension of time for Defendant to respond to the new
22 declarations nom Plaintiff and Mr. Sandhaus as well.
23 It was not within the Plaintiffs control to file her more comprehensive
24 Declaration any earlier because of her severe medical condition.
25 Rule 56(c), Ped. R. Civ; P., also permits a party opposing a motion for summary
26 judgment to file affidavits prior to the day of the hearing so that the matter can be
27 decided on the merits. Plaintiff should be given the opportunity to fully present her side
28 -
3
Case 2:04-cv-00525-RCB Document 95 Filed 10/17/2005 Page 3 of 4
l as the Court considers Defendant’s motion for summary judgment s0 that it can be fairly Z
2 decided on the merits. GNB, Inc. v. T ropex, Inc., 849 F.2d 605 (4th Cir. 1988). -
3 CONCLUSION
4 For the foregoing reasons, Plaintiff respectfully requests that the Court grant 2
5 leave for her to file the (1) Supplemental Declaration of Constance Ann Maynard in i
6 Support of Opposition to Defendants’ Motion for Summary Judgment and Supporting .
7 Exhibits and (2) Declaration of Stuart H. Sandhaus in Support of Plaintiffs Opposition E
8 to Defendants’ Motion for Summary Judgment and Supporting Exhibits. ¤
9 Respectfully submitted this 17th day of October, 2005.
10 STUART H. SANDHAUS, P.C.
§ H Stuart I-1. Sandhaus, Esq. c
_ E E [email protected] ;
iigi Q 12 Los Rios Historic District E
gg 13 31901 Los Rios Street
i E gi:] San Juan Capistrano, CA 92675 ,
Ears I4 3
$9; E`; 15 GOMEZ & PETITTI, P.C.
{E °“
Q 16 By: s/ David F. Gomez, Esq.
17 David F. Gomez, Esq.
[email protected]
18 Michael J. Petitti, Jr., Esq.
19 2525 E. Camelback Road, Suite 860
Phoenix, Arizona 85016
20 On behalf of Attorneys for Plaintiff
21 CERTIFICATE OF SERVICE
22
23 I hereby certify that on the 17th day of October, 2005, 1 electronically transmitted
the attached document to the C1erl<’s office using the CMfECF Systems for filing and
24 transmittal of a Notice of Electronic Filing to the following CM/ECP registrant:
25 J efhey B. Kuykendal
26 jbl<@gknet.com
27 s/ Bernice J. Pendell
28
4
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