1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TODD ALEXANDER, Case No.: 3:22-cv-01416-RBM-SBC

12 Plaintiff, ORDER 13 v. (1) DENYING DEFENDANTS’ 14 LEADERSHIP RESEARCH INSTITUTE, MOTION TO STRIKE (DOC. 62) INC., et al., 15 AND STATEMENT OF Defendants. PLAINTIFF’S NON-OPPOSITION 16 (DOC. 60) 17 (2) EXTENDING DEFENDANTS’ 18 TIME TO FILE A REPLY TO 19 PLAINTIFF’S OPPOSITION TO

DEFENDANTS’ MSJ 20

21 22 23 On September 20, 2024, Defendants Leadership Research Institute, Inc., Howard 24 Morgan, Richard Silvestri, Steven Rumery, John Streitmatter, and Joelle Jay (collectively, 25 “Defendants”) filed a Motion for Summary Judgment or, Alternatively, Partial Summary 26 Judgment/Adjudication (“Defendants’ MSJ”), with a selected hearing date of October 28, 27 2024. (Doc. 56.) The same day, Plaintiff Todd Alexander (“Plaintiff”) filed a Motion for 28 Summary Judgment (“Plaintiff’s MSJ”) with the same hearing date. (Doc. 57.) 1 On October 11, 2024, Defendants filed an Opposition to Plaintiff’s MSJ. (Doc. 59.) 2 A day later, on October 12, 2024, Defendants filed a Statement of Plaintiff’s Non- 3 Opposition to Defendants’ MSJ (“Statement of Plaintiff’s Non-Opposition”). (Doc. 60.) 4 In their Statement of Plaintiff’s Non-Opposition, Defendants explain that Plaintiff’s 5 opposition to Defendants’ MSJ was due October 11, 2024 but that Plaintiff failed to file 6 any such opposition. (Id. at 2.) Defendants then argue “that Plaintiff’s non-opposition to 7 Defendants’ [MSJ] is properly deemed consent to this Court granting Defendants’ [MSJ].” 8 (Id. at 3 (citing Cheema v. United States Citizenship & Immigr. Servs., Case No.: 9 19cv0422-WQH-BLM,

, at *1 (S.D. Cal. Aug. 7, 2019)).) In 10 conclusion, “Defendants respectfully request that the Court issue an order granting 11 Defendants’ [MSJ], and issue judgment in Defendants’ favor as to Plaintiff’s Second 12 Amended Complaint [‘SAC’], and each cause of action set forth therein.” (Id.) 13 On October 14, 2024, Plaintiff filed an Opposition to Defendants’ MSJ. (Doc. 61.) 14 The same day, Defendants filed a Notice of Plaintiff’s Untimely Filing and Request to 15 Strike (“Motion to Strike”). (Doc. 62.) In their Motion to Strike, Defendants reiterate the 16 same arguments set forth in their Statement of Plaintiff’s Non-Opposition, concluding that 17 “Plaintiff’s untimely Opposition is improper and should be stricken.” (Id. at 3.) 18 In response to Defendants’ Statement of Plaintiff’s Non-Opposition and Motion to 19 Strike, Plaintiff’s counsel filed two affidavits requesting that the Court consider its late- 20 filed opposition. (See Docs. 63, 64.) In both affidavits, Plaintiff’s counsel explains that he 21 mistakenly calendared the opposition deadline for October 14, 2024, not realizing that 22 October 14, 2024 was a federal holiday, which changed the opposition deadline to October 23 11, 2024. (See Doc. 63 ¶¶ 5–6; Doc. 64 ¶¶ 6–7.) Plaintiff’s counsel then requests that the 24 Court use its discretion to excuse his good faith mistake and consider Plaintiff’s late-filed 25 Opposition. (See Doc. 63 ¶¶ 8, 14; Doc. 64 ¶¶ 9, 15.) 26 I. DISCUSSION 27 “[E]ach party opposing a motion, application, or order to show cause must file that 28 opposition or statement of non-opposition with the Clerk and serve the movant or the 1 movant’s attorney not later than fourteen (14) calendar days prior to the noticed hearing. 2 For example, for a motion to be heard on a Monday, the opposition papers must be filed 3 and served no later than two (2) Mondays prior to the noticed hearing. However, if the 4 second Monday prior to the Monday hearing is a holiday, then the opposition papers must 5 be filed and served no later than three (3) Fridays prior to the noticed hearing.” S.D. Cal. 6 Civ. R. 7.1(e)(2) (emphasis added). Here, Plaintiff concedes that his opposition to 7 Defendants’ MSJ was due Friday, October 11, 2024 because Monday, October 14, 2024 8 was a federal holiday and that he did not file his Opposition until October 14, 2024. 9 Defendants therefore request that Plaintiff’s Opposition be stricken, that Defendants’ MSJ 10 be granted, and that judgment be issued in Defendants’ favor as to Plaintiff’s SAC. For 11 the reasons set forth below, Defendants’ requests are DENIED. 12 First, considering the timing of the federal holiday, the Court is persuaded that 13 Plaintiff’s counsel’s calendaring mistake was genuine. Further, as Plaintiff correctly notes, 14 the law has a strong preference for deciding cases on their merits. See Am. Guard Servs., 15 Inc. v. Szerlip & Co., No. CV 18-05418-RSWL-SS,

, at *2 (C.D. Cal. 16 Aug. 21, 2018) (exercising discretion to consider a late-filed opposition); Summer v. 17 Berryhill, No. 16-CV-01872-BLF,

, at *3 (N.D. Cal. July 14, 2017) 18 (“[T]he Court shall exercise its discretion to consider Defendant’s late-filed cross-motion 19 and opposition on the merits” despite a delay of five and a half months). Additionally, 20 aside from noting that Plaintiff’s Opposition was filed late, Defendants have not argued 21 that they would be prejudiced by the Court’s consideration of the late filing. See Am. Guard 22 Servs., Inc.,

, at *2; Summer,

, at *3. Finally, the 23 Court is not persuaded by Defendants’ reliance on Cheema. In contrast to the short three- 24 day delay here, the plaintiff in Cheema never filed an opposition to the defendant’s motion 25 to dismiss.

, at *1. Further, despite the plaintiff’s failure to file an 26 opposition, the district court granted the plaintiff leave to amend her complaint. Id. at *2. 27 Thus, Cheema does not support the extreme relief requested here—that Defendants’ MSJ 28 be granted and that judgment be issued in Defendants’ favor. 1 Il. CONCLUSION 2 Based on the foregoing, Defendants’ Motion to Strike (Doc. 62) and the requests set 3 || forth in Defendants’ Statement of Plaintiff's Non-Opposition (Doc. 60) are DENIED. The 4 ||Court exercises its discretion to consider Plaintiffs Opposition to Defendants’ MSJ. 5 || Nevertheless, to avoid any potential prejudice to Defendants caused by the late filing of 6 || Plaintiff's Opposition, Defendants may have until October 24, 2024 to file their Reply to 7 || Plaintiff's Opposition to Defendants’ MSJ. 8 IT IS SO ORDERED. 9 ||DATE: October 16, 2024 10 Fe Barna, Moittiegs D_ HON. RUTH BERMUDEZ'MONTENEGRO UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28