(SS) Russo v. Commissioner of Social Security

PHILLIP A. TALBERT United States Attorney DEBORAH LEE STACHEL Regional Chief Counsel, Region IX Social Security Administration S. WYETH McADAM 4 Special Assistant United States Attorney Spear Street, Suite 800 5 San Francisco, California 94105 Telephone: (415) 268-5610 6 Facsimile: (415) 744-0134 E-Mail: [email protected] Attorneys for Defendant 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION CHARLES RUSSO, ) Case No.: 1:19-cv-01453-SKO ) 13 Plaintiff, ) ORDER GRANTING DEFENDANT’S ) UNOPPOSED MOTION TO FILE A vs. ) LATE ANSWERING BRIEF 15 ) ANDREW SAUL, ) (Doc. 22) Commissioner of Social Security, ) ) Defendant. ) 18 ) ) Pursuant to the Court’s minute order entered September 21, 2020, Defendant’s responsive brief was due to be filed no later October 19, 2020. (Doc. 21.) Defendant filed the present motion on November 2, 2020—over two weeks after Defendant’s answering brief deadline expired. (Doc.

22.) The motion states that S. Wyeth McAdam, counsel to the Commissioner, uses the Outlook Task system to track her assignments and inadvertently did not move this case’s task from the “awaiting Plaintiff’s opening brief” category to the “Defendant’s answering brief due” category when Plaintiff filed and served his opening brief. (See id.) According to the motion, on Friday, October 30, 2020, counsel to Defendant realized her error and communicated with Plaintiff’s counsel, Jonathan Peña, who did not object to Defendant filing a late answering brief and agreed to a new briefing schedule. (See id.) 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, the Stipulation demonstrates good cause under to support the request for extension of time (see Fed. R. Civ. P. 16(b)(4)), as well as excusable neglect to justify the untimeliness of the request. Accordingly, given the absence of bad faith or prejudice to Plaintiff (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 Defendant’s unopposed motion. The parties are cautioned that future post hoc requests for extensions of time will be viewed with disfavor.

IT IS HEREBY ORDERED that Defendant shall have an extension of time, to and including November 30, 2020, by which to file his answering brief. All other deadlines set forth in the Scheduling Order (Doc. 5) are enlarged accordingly.

IT IS SO ORDERED.

Sheila K. Oberto Dated: November 4, 2020 /s/ .

UNITED STATES MAGISTRATE JUDGE