Kennedy v. Watts

WASe MOVEUUSOUOR NINE DW VOCUMICIL Of □□□ Faye 1 Ole |] AARON D. FORD Attorney General Teen || GERRI LYNN HARDCASTLE, Bar No. 13142 Ae —— RECEIVED De —— ENTERED ___ SERVED ON puty Attorney General COUNSEL/PARTIES OF R || State of Nevada ECORD Public Safety Division 4 . Carson Street U ane Carson City, Nevada 89701-4717 2019 | Tel: (775) 684-1134 E-mail: [email protected] CLERK US DISTRICT COURT 6 DISTRICT OF NEVADA Attorneys for Defendants BY; □□ □□□ || James Dzurenda and William Gittere 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA Jj ||] KEVIN LEE KENNEDY, Case No. 3:17-cv-00468-MMD-CBC 12 Plaintiff, DEFENDANTS DZURENDA AND GITTERE’S || vs. MOTION FOR ENLARGEMENT OF TIME TO MOVE FOR SUMMARY JUDGMENT || DAN WATTS, et al., (Second Request) 15 Defendants.

16 Defendants, James Dzurenda and William Gittere, by and through counsel, Aaron D. Ford |{ Attorney General of the State of Nevada, and Gerri Lynn Hardcastle, Deputy Attorney General, hereb: |] move this Honorable Court for an enlargement of time to move for summary judgment 19 MEMORANDUM OF POINTS AND AUTHORITIES 1. FACTS AND RELEVANT PROCEDURAL HISTORY 21 This case is a pro se civil rights action pursuant to 42 U.S.C. § 1983. ECF No. 21 at 1 || Plaintiff, Kevin Kennedy (Plaintiff), is an inmate who is currently incarcerated at Ely State Prisor |} (ESP). Jd. In his First Amended Complaint (FAC), Plaintiff alleges, among other claims, tha || Defendants James Dzurenda and William Gittere (the NDOC Defendants) violated his Fourteentl 25 Amendment right to due process by housing him in administrative segregation for over five month: || without giving him notice or an opportunity to be heard. ECF No. 24 at 15.

27 On July 3, 2019, the NDOC Defendants filed their Motion for Enlargement of Time to Move fo || Summary Judgment (First Request). ECF No. 83. The NDOC Defendants explained that due to short NAO EEO VETIVER Nt Ne UCC OF POU Ve PAY ee |] staffing in the Bureau of Litigation, counsel’s workload had dramatically increased and she was □□□□□□ || to complete her clients’ motion for summary judgment (MSJ) by the deadline in the Scheduling Order || Jd. at 2. Defendants and their counsel therefore requested an additional two (2) weeks, or up to anc || including Wednesday, July 17, 2019, to file their MSJ. Jad. This Court graciously granted that request || ECF No. 85.

6 Unfortunately, counsel’s request of two (2) weeks was overly optimistic and ambitious || Moreover, counsel is currently in the process of preparing for an upcoming jury trial before the Unitec || States District Court (see Gruber v. Gedney, et al., Case No. 3:15-cv-00543-RCJ-CBC, ECF No. 134) || and drafting an answering brief to submit to the Ninth Circuit (see Friedman v. Woods, et al., Case No || 19-16136, DktEntry 2-1). Accordingly, Defendants and their counsel respectfully request thi |] Honorable Court allow them up to and including Friday, August 16, 2019, to file their MSJ.

12 | IL. DISCUSSION 13 A. Fed. R. Civ. P. 6(b)(1) allows this Court to extend deadlines.

14 District courts have inherent power to control their dockets. Hamilton Copper & Steel Corp. v || Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir. 1990); Oliva v. Sullivan, 958 F.2d 272, 273 (9th Cir |} 1992). Fed. R. Civ. P. 6(b)(1) governs enlargements of time and provides as follows: 17 When an act may or must be done within a specified time, the court may, for good cause, extend the time: (A) with or without motion or notice if 18 the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the 19 party failed to act because of excusable neglect.

20 “The proper procedure, when additional time for any purpose is needed, is to present to the 21 Court a timely request for an extension before the time fixed has expired (i.e., a request presentec || before the time then fixed for the purpose in question has expired).” Canup v. Miss. Valley Barge Lin || Co., 31 F.R.D. 282, 283 (D.Pa. 1962). The Canup Court explained that “the practicalities of life” □□□□□ 24 as an attorney’s “conflicting professional engagements” or personal commitments such as vacations |i family activities, illnesses, or death) often necessitate an enlargement of time to comply with a cour || deadline. Jd. Extensions of time “usually are granted upon a showing of good cause, if timely made.’

27 || Creedon v. Taubman, 8 F.R.D. 268, 269 (D.Ohio 1947). The good cause standard considers a party’s 28 /// WAS Geb EUIUTVOT De LUTION OF FOU Viti hs FT AYye VU |} diligence in seeking the continuance or extension. Johnson v. Mammoth Recreations, Inc., 975 F.2¢ |] 604, 609 (9th Cir. 1992).

3 B. Good cause exists to enlarge the time for Defendants to respond.

4 Here, the NDOC Defendants are making a second request for additional time to move fo |} summary judgment in advance of the deadline to do so. Therefore, they must demonstrate good cause || for the requested enlargement. As stated, they additional time to file their MSJ, because short-staffing in this Bureau of Litigation at the Office of the Attorney General has dramatically increased counsel’: || current workload. They also need additional time, because their counsel is currently preparing for < || jury trial and drafting an answering brief for the Ninth Circuit. Counsel believed she could complete || the MSJ with just two (2) additional weeks, but she was mistaken. Accordingly, the NDOC Defendant: 11 and counsel seek up to and including Friday, August 16, 2019, to file their MSJ. The NDOC || Defendants seek this enlargement in good faith and not for the purpose of any unnecessary delay || Lastly, the NDOC Defendants do not anticipate any unfair prejudice Plaintiff or the other defendant: || who have appeared in this case.

15 || I. CONCLUSION 16 Based on the foregoing, Defendants respectfully request that this Honorable Court grant thei || Motion for Enlargement of Time (Second Request) and allow them up to and including Friday, August 16 18 2019, to file their motion for summary judgment.

19 DATED this 17th day of July, 2019.

20 AARON D. FORD Attorney General Te GERRI L HARDCASTLE, Bar No. 13142 23 Deputy Attothey General 24 Attorneys for Defendants 26 OF IS SO ORDERED > paren: 2@/7_