Free Order on Motion for Extension of Time - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Armando Robert Aros, III,

) ) Plaintiff, ) ) vs. ) ) ) Robinson, et al., ) ) Defendants. ) ________________________________ )

No. CV-04-306-PHX-SRB (LOA) ORDER

This matter arises on Plaintiff's Motion for Enlargement of Time. (docket # 83) Plaintiff seeks an extension of the deadline for filing a reply to Defendants' Motion for Summary Judgment. On June 22, 2006, Defendants filed a Motion for Summary Judgment. (docket # 50) Thereafter, the Court ordered Plaintiff to file a Response on or before August 9, 2006. (docket # 54) Plaintiff failed to comply with that deadline and on November 11, 2006, Defendants filed a motion requesting a ruling on the motion for summary judgment. (docket # 74) Plaintiff objected to Defendants' request for a ruling and requested additional time in which to respond to the Motion for Summary Judgment. (docket # 77) On December 5, 2006, the Court granted Plaintiff an extension until January 16, 2007 to file a Response to Defendants' motion for summary judgment. (docket # 80) The Court warned Plaintiff that it would neither consider nor grant further requests for extensions of time. Despite the Court's leniency in extending the briefing deadlines and the warning regarding future extensions, after the January 16, 2007

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deadline passed, on February 1, 2007, Plaintiff submitted a request for an extension of time to respond to Defendants' motion for Summary Judgment. (docket # 83) The Court finds that Plaintiff fails to establish grounds for granting an extension of the deadline at issue. Federal Rule of Civil Procedure 6(b) provides that the Court: for cause shown may at any time in its discretion (1) with or without motion or notice order [a deadline] enlarged if request therefore is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. Fed.R.Civ.P. 6(b)(emphasis added). In view of Plaintiff's pro se prisoner status, the court will apply the mailbox rule and treat Plaintiff's pending motion as filed on February 1, 2007, the date on which Plaintiff indicated the pleading was given to prison officials for mailing. (docket # 83 at 5; docket # 84 at 7); Houston v. Lack, 487 U.S. 266, 270-74 (1988)(calculating the filing date of pro se pleadings as the date on which the prisoner signed and delivered the document to prison authorities for filing, not the subsequent date on which it was filed in court). Even applying the mailbox rule, Plaintiff's motion for extension of time was filed after the January 16, 2007 deadline which he seeks to extend. Accordingly, Fed.R.Civ.P. 6(b)(2) applies and Plaintiff must establish excusable neglect for his failure to comply with the Court's deadline. As discussed below, the Court finds that Plaintiff fails to satisfy either excusable neglect or the less stringent "cause" standard for granting an extension. Plaintiff claims that he has been unable to prepare his response to the motion for summary judgment because of several prison transfers on November 22, 2006 and December 20, 2006. (docket # 83 at 2) Plaintiff claims that he has lost "commissary and property privileges", has been subjected to "sensory deprivation", and was denied the opportunity to purchase Christmas items. (Id. at 3) None of the foregoing reasons establishes either cause to extend the deadline at issue or that Plaintiff's failure to file a timely response to Defendants' motion for summary judgment was the result of excusable neglect. Plaintiff further argues that during the prison transfers, he was "separat[ed] from his legal materials." (Id.) Although lack of access to his legal materials could make it more challenging for Plaintiff to respond to Defendants' motion for summary judgment, on the facts
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of this case, it does not compel an extension of the deadline for filing a response. The motion for summary judgment has been pending since June of 2006 and Plaintiff has already been granted additional time in which to prepare a response. Plaintiff had nearly five months in which to prepare a response to the motion for summary judgment before the alleged prison transfers in November and December of 2006 led to the "separation from his legal files." Plaintiff has had more than ample opportunity to prepare a response to the pending motion for summary judgment and further extensions of that deadline will only impede the resolution of this matter. The Court finds that Plaintiff fails to establish cause for extending the deadlines in this matter or that his failure to comply with the deadline for responding to the motion for summary judgment was the result of excusable neglect. The Ninth Circuit has made clear that deadlines set by the district court are to be "taken seriously." Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir.1994). More recently the Ninth Circuit has stated: In these days of heavy caseloads, trial courts in both the federal and state systems routinely set schedules and establish deadlines to foster the efficient treatment and resolution of cases. Those efforts will be successful only if the deadlines are taken seriously by the parties, and the best way to encourage that is to enforce the deadlines. Parties must understand that they will pay a price for failure to comply strictly with scheduling and other orders, and that failure to do so may properly support severe sanctions and exclusions of evidence. Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir.2005).

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For the foregoing reasons,
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IT IS HEREBY ORDERED that Plaintiff's Motion for Enlargement of Time
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(docket # 83) is DENIED.
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DATED this 9th day of February, 2007.

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