(SS) Trevino v. Commissioner of Social Security

JONATHAN O. PENA, ESQ.

CA Bar ID No. 278044 Peña & Bromberg, PLC 2440 Tulare St., Suite 320 Fresno, CA 93721 Telephone: 559-412-5390 Fax: 866-282-6709 [email protected] Attorney for Plaintiff UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 9 ) Case No. 1:19-CV-00870 Ernesto Trevino, ) 10 ) STIPULATION AND ORDER FOR Plaintiff, ) EXTENSION OF TIME 11 ) vs. ) (Doc. 23) 12 ) ANDREW SAUL, ) Commissioner of Social Security, ) ) 14 ) Defendant. ) 17 IT IS HEREBY STIPULATED, by and between the parties through their respective counsel of record, with the Court’s approval, that Plaintiff shall have a 24-day extension of time, from July 7, 2020 to July 31, 2020, for Plaintiff to serve on defendant with PLAINTIFF’S REPLY BRIEF . All other dates in the Court’s Scheduling Order shall be extended accordingly.

21 This is Plaintiff’s fourth request for an extension of time but first request for this task.

22 Counsel acknowledges this request is being made after the deadline and apologizes to Defendant, Defense Counsel and the Court.

24 Good cause exists. As with most organizations, COVID-19 has taken a toll on the regular course of business within Counsel’s office. As a result of the various executive orders throughout Fresno County and the State of California, along with the recommendations for Social Distancing, Plaintiff’s Counsel is operating with very limited staff. The Office of Hearings Operations is still conducting telephonic hearings. As it is required to continue the normal day-to-day tasks involved in developing cases and the requirements of the five-day rule related to submission of evidence to the Administrative Law Judge which is imposed under 20 CFR § 404.935, Counsel must still continue normal operations but with a significantly reduced level of support. Additionally, Counsel requires that his staff self-quarantine when COVID-19 symptoms appear, thus further reducing support necessary to timely and efficiently process the workload. Counsel has since hired additional attorney and paralegal support to assist with Plaintiff’s Counsel workload.

7 Defendant does not oppose the requested extension. Again, Counsel apologizes to the Defendant and Court for any inconvenience this may cause.

Respectfully submitted, Dated: July 20, 2020 PENA & BROMBERG, ATTORNEYS AT LAW By: /s/ Jonathan Omar Pena JONATHAN OMAR PENA 14 Attorneys for Plaintiff

Dated: July 20, 2020 MCGREGOR W. SCOTT 17 United States Attorney DEBORAH LEE STACHEL 18 Regional Chief Counsel, Region IX 19 Social Security Administration By: */s/ Patrick Snyder 21 Patrick Snyder 22 Special Assistant United States Attorney Attorneys for Defendant 23 (*As authorized by email on 7/20/2020) ORDER 26 Pursuant to the parties’ prior stipulation, Plaintiff’s reply brief was due to be filed no later July 7, 2020. (Doc. 21.) On July 20, 2020, the parties filed the above “Stipulation For Extension of Time” seeking to enlarge the deadline by which Plaintiff files his reply brief (the “Stipulation”).

1 (Doc. 23.) The Stipulation was filed almost two weeks after Plaintiff’s reply brief deadline expired.

3 The Court may extend time to act after the deadline has expired because of “excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). Here, although the Stipulation demonstrates good cause under to support the request for extension of time (see Fed. R. Civ. P. 16(b)(4)), no such excusable neglect has been articulated—much less shown—to justify the untimeliness of the request.

7 Notwithstanding this deficiency, given the absence of bad faith or prejudice to Defendant (as evidenced by his agreement to the extension of time after the deadline) and in view of the liberal construction of Fed. R. Civ. 6(b)(1) to effectuate the general purpose of seeing that cases are tried on the merits, see Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258–59 (9th Cir. 2010), the Court GRANTS the parties’ stipulated request. The parties and their counsel are cautioned that future post hoc requests for extensions of time will be viewed with disfavor.

IT IS HEREBY ORDERED that Plaintiff shall have an extension of time, to and including July 31, 2020, by which to file his reply brief.

16 IT IS SO ORDERED.

17 Sheila K. Oberto Dated: July 21, 2020 /s/ .

18 UNITED STATES MAGISTRATE JUDGE