Barnes v. Gettierr

WASE VB. LO-UVIUUOIUTINVINMIE NLD LUUUITICT CO TWN UIUC Faye Wi or |} AARON D. FORD Attorney General || ROST C. OLSEN, Bar No. 14410 Deputy Attorney General || State of Nevada Public Safety Division || 100 N. Carson Street Carson City, Nevada 89701-4717 || Tel: (775) 684-1209 E-mail: [email protected] Attorneys for Defendants || Mark Boyd, William Gittere, and Evelyn Rodriguez 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA |] JAQUAN BARNES, Case No. 3:18-cv-00390-MMD-CLB 12 Plaintiff, MOTION FOR EXTENSION OF TIME TO |v. FILE NOTICE AS REQUIRED IN THE MINUTE ORDER (ECF No. 20) |) WILLIAM GETTIERR, et al., 15 Defendants 16 Defendants Mark Boyd, William Gittere, and Evelyn Rodriguez, by and thr ugh counsel, □□□□□ || D. Ford, Attorney General of the State of Nevada, and Peter E. Dunkley, Deputy Attorney Genera || (DAG), hereby submit their Motion for Extension of Time to File Notice as Required in ECF No. 20 || This Motion is based on Federal Rule of Civil Procedure 6(b)(1)(B), the following Memorandum o || Points and Authorities, and all papers and pleadings on file in this action.

21 MEMORANDUM OF POINTS AND AUTHORITIE 22 Defendants respectfully request until close of business on Friday, January|10, 2020 to file th || Notice called for in ECF No. 20 explaining why the Office of the Attorney Gengral does not accer || service on behalf of Defendant Richard C. Adams. At the time of entry and service|of the Minute Orde \|(ECF No. 20) on December 19, 2019, undersigned counsel inadvertently neglected to ensure th || deadline was properly noted on his calendar. Decl. of Rost C. Olsen, § 5.

27 This matter subsequently came back to the undersigned’s attention on January 6, 2020 whe || Court staff reached out to him to inquire as to the status of the Notice. Jd. at { 6.

WADE LOU VEO IU NENT ED UIMEUEIGIT OD DOIG Ie AY Go Mt I The requested extension of time will afford Defendants adequate time to properly brief the {| Notice and submit it to the Court.

3 Federal Rule of Civil Procedure 6(b)(1) governs extensions of time and proyides as follows: 4 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 5 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 6 party failed to act because of excusable neglect.

7 || “[E]xcusable neglect” is an “elastic concept.” Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S || 380, 392, 113 S.Ct. 1489, 1496, 123 L.Ed.2d 74 (1993). The determination of whatlis “excusable” is “a || bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.’

10 || Jd. at 395, 113 S.Ct. at 1498. “Cases should be decided upon their merits whenever □□□□□□□□□□ || possible.” Eitel vy. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986).

12 In this case, Defendants’ failure to timely file and objection or a request for an extension is due || to excusable neglect. See Decl. of Rost C. Olsen, § J 1-6. The shortage of support staff during the || holiday season in which the Minute Order was entered and undersigned’s inadvertent oversight led t 15. || the failure of placing this particular deadline on his calendar. Jd. at § § 4-6. This faifure, in combinatior || with managing other competing deadlines, resulted in undersigned’s inadvertent failure to □□□□ || prepare and submit the Notice. Jd. at § J 4-6. The requested extension will permit undersigned at || opportunity to properly brief and file the Notice. Defendants assert that the circumstances are such tha || excusable neglect is present which would warrant the requested extension of time and will facilitate th || policy of a decision on the merits. See id. at | { 4-6; see also Eitel, 782 F.2d at 1472, 21 ///// | ///// || ///// 24 ///1/ || ///// || ///// || ///// || ///// WAOe YVLOTUVUUY LB MUU CO POU IUUIeY Faye Ur & 1 For these reasons, Defendants respectfully request an extension of time until close of busines: || on Friday, January 10, 2020, to file the Notice required in ECF No. 20.

3 | 1 EXHIBIT A. Declaration of Rost C. Olsen 4 DATED this 6th day of January, 2020.

5 AARON D. FORD ‘ Attorney General 7 By: /s/ Rost C. Olsen ROST C. OLSEN, Bar No. 14410 8 Deputy Attorney General 9 Attorneys for Defendants IS SO ORDERED.

12 Ce) , \ 13 (Tx AGISTRATE JUDGE patep: |/ V/ZrO WAI UV UV OV IVIIVILY WLS LYVVULIINEI Ow PMWM Vaivi oy wi oF CERTIFICATE OF SERVICE I certify that | am an employee of the Office of the Attorney General, Stat¢ of Nevada, and tha on this 20th day of January, 2020, I caused to be served a copy of the foregoing, MOTION FOR EXTENSION OF TIME TO FILE OBJECTION TO MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION by U.S. District Court CM/CFE Electronic Filing to: Roger Randolph, #1086077 Care of LCC Law Librarian Lovelock Correctional Center || 1200 Prison Road Lovelock, NV 89419 || [email protected] 1] tO as he “eg 13 An employee of the 14 Office of the Attorney General

EXHIBIT Declaration of Rost C. Olsen EXHIBIT WADE VY LOTUVTUYOIUTNINILIT LD MULUMITICI cork Pe Valve FP Ve DECLARATION OF ROST C. OLSEN 2 I, Rost C. Olsen, Esq., declare the following: 3 1. I am a Deputy Attorney General (DAG) for the Office of the Nevada Attorney Genera || (OAG). I work in the Carson City location.

5 2. On December 19, 2019, my legal assistant and I received the Court’s Minute Order, □□□ || No. 20, through the Court’s e-filing system.

7 3. Generally, when we receive orders from the Court, my legal assistant places deadline: || from those order in my electronic work calendar, and I review orders shortly afterward to confirm am || deadlines are on my calendar.

10 4, During the time the Minute Order came in, our office was short] on staff due to the holiday season, and the January 2, 2020 deadline was not placed on my electronic work calendar.

12 5. Subsequently, J inadvertently forgot to confirm whether the January|2, 2020 deadline fo |! the Notice, as contained in the Minute Order, was placed on my calendar.

14 6. Due to this inadvertence, I did not relearn of this deadline until January 6, 2020 wher Court staff contacted me to inquire of the status of the Notice.

16 Pursuant to 28 U.S.C. § 1746 Declarant certifies, under penalty of perjury, that the foregoing 1 M7 true and correct.

18 Executed this 6th day of January, 2020 in Carson City, Nevada.

20 /s/ Rost C. Olsen 51 Rost C. Olsen