1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 JOSE LUIS BARAJAS ESCAMILLA, Case No. 23-cv-05033-BLF

8 Plaintiff, ORDER GRANTING MOTION FOR 9 v. LEAVE TO FILE LATE REPLY BRIEF

10 LIDIA MIRANDA, et al., [Re: ECF No. 33] 11 Defendants.

12 13 Defendants Lidia Miranda and Michael’s Grill and Taqueria, Inc. have moved the Court 14 for leave to file a late reply brief. ECF No. 33 (“Mot.”). Plaintiff Jose Luis Barajas Escamilla has 15 not filed an opposition to the motion. For the reasons stated below, the Court GRANTS the 16 motion and DIRECTS Defendants to file their reply brief no later than February 5, 2024. 17 I. LEGAL STANDARD 18 Federal Rule of Civil Procedure 6(b)(1)(B) governs extensions of time after the relevant 19 deadline has expired. Rule 6(b)(1)(B) states that, “[w]hen an act may or must be done within a 20 specified time, the court may, for good cause, extend the time . . . on motion made after the time 21 has expired if the party failed to act because of excusable neglect.” “To determine whether a 22 party’s failure to meet a deadline constitutes ‘excusable neglect,’ courts must apply a four-factor 23 equitable test, examining: (1) the danger of prejudice to the opposing party; (2) the length of the 24 delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the 25 movant acted in good faith.” Ahanchian v. Xenon Pictures, Inc.,

(9th Cir. 26 2010) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,

(1993)). 27 A district court abuses its discretion by failing to engage in this four-factor test or at least 1 “district court is given broad discretion in supervising the pretrial phase of litigation, and its 2 decisions regarding the preclusive effect of a pretrial order . . . will not be disturbed unless they 3 evidence a clear abuse of discretion.” The United States v. Thill, No. 14-29-BLG-SPW-CSO, 4

, at *1. (D. Mont. Jan. 28, 2015) (citing Jorgensen v. Cassiday,

, 5 913 (9th Cir. 2003)) (internal quotation marks and citations omitted). “The law has a strong 6 preference to determine cases on their merits whenever possible.” Barg Coffin Lewis & Trapp, 7 LLP v. Arlie & Co., No. 14-4740-LB,

, at *4 (N.D. Cal. Dec. 22, 2014) (citing 8 Brandt v. Am. Bankers Ins. Co. of Fla.,

, 1111–12 (9th Cir. 2011)). 9 II. DISCUSSION 10 Defendants argue that the first two factors weigh in favor of granting leave to file a reply 11 because they seek only to file a reply brief in support of a motion that will not be heard until April. 12 Thus, they reason, Plaintiff will not be prejudiced, and the proceeding would not be impacted 13 because Plaintiff’s deadlines and the hearing are not impacted by the delay. Mot. at 8. Defendants 14 also argue that they have shown excusable neglect because their counsel failed to calendar the 15 deadline due to a miscommunication.

Finally, Defendants argue that they are not acting in bad 16 faith because they do not have a repeated history of failing to comply with court rules.

17 The Court addresses each of the four Pioneer factors in turn. First, the Court agrees with 18 Defendants that Plaintiff would not be prejudiced by the filing of a late reply brief. Because 19 Defendants seek only to file a reply, a brief to which the nonmoving party is not typically entitled 20 to respond, Plaintiff would not suffer any delay in filing his own papers. Second, Defendants have 21 delayed about two months from the November 23, 2023 deadline required under the local rules or 22 the December 8, 2023 deadline set by the Court’s scheduling order. See Civ. L.R. 7-3(a) (“The 23 opposition must be filed and served not more than 14 days after the motion was filed.”); Civ. L.R. 24 7-3(c) (“The reply to an opposition must be filed and served not more than 7 days after the 25 opposition was due.”); see also ECF No. 19 (motion to dismiss filed on November 2, 2023); see 26 also ECF No. 27 (order setting briefing schedule on the motion to dismiss). However, the Court 27 finds that this delay would not impact proceedings because the hearing on Defendants’ motion to 1 delaying proceedings and gives Plaintiff and the Court ample time to review the reply brief in 2 preparation for the hearing. 3 Third, the Court finds that Defendants have offered an adequate explanation for the delay. 4 Their counsel have filed declarations representing to the Court that they calendared deadlines 5 “consistent with what [they] thought were the applicable court rules.” ECF No. 34 (“Biegel 6 Decl.”) ¶ 3. Although one lawyer for Defendants received notice of the Court’s order setting a 7 briefing schedule, he neglected to forward the notice to co-counsel. ECF No. 35 (“Cisneros 8 Decl.”) at 3. The Court finds that this “is an example of careless, negligent behavior amounting to 9 excusable neglect.” Armstrong v. Hartford Life & Acc. Ins. Co., No. 2:12-CV-02227-MCE, 2014

, at *2 (E.D. Cal. Aug. 20, 2014) (finding excusable neglect where counsel admitted 11 that he forgot to calendar a motion, which resulted in his failure to call opposing counsel to ask for 12 a stipulation for an extension). 13 Fourth, the Court finds that whether Defendants acted in good faith is a close question. 14 Other courts have found an absence of good faith where a party repeatedly fails to comply with 15 court rules. See Radcliffe v. JPMorgan Chase Bank NA,

(9th Cir. 2014) 16 (affirming a district court’s finding of no excusable neglect based on the third and fourth Pioneer 17 factors where the movant failed repeatedly to comply with court rules). Although Defendants 18 represent that they do not have a repeated history of failing to comply with court rules, the Court 19 observes that it has admonished Defendants for failing to comply with this Court’s standing orders 20 regarding the format of motions and the local rules regarding the length of motions. See ECF Nos. 21 20, 36. However, Defendants have not repeatedly failed to comply with Court deadlines, and the 22 declarations of Defendants counsel demonstrate that counsel were simply mistaken about the 23 appropriate deadlines. Thus, the Court concludes that Defendants are not acting in bad faith in 24 bringing this motion. That said, the Court encourages Defendants to read and familiarize 25 themselves with the Court’s standing orders and the Northern District’s local rules such that 26 mistakes of this nature do not occur again. 27 // I. ORDER For the foregoing reasons, IT IS HEREBY ORDERED that Defendants Lidia Miranda and 2 Michael’s Grill and Taqueria, Inc.’s Motion for Leave to File a Late Reply Brief (ECF No. 33) is 3 GRANTED. Defendants SHALL file their reply brief in support of their motion to dismiss no 4 later than February 5, 2024. 5 6 4 8 BETH LABSON FREEMAN 9 United States District Judge 10 11 12

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