Shackerford v. Dzurenda

Attorney General ALEXANDER J. SMITH (Bar No. 15484C) Deputy Attorney General State of Nevada Office of the Attorney General 555 East Washington Avenue Suite 3900 Las Vegas, Nevada 89101 (702) 486-4070 (phone) (702) 486-3773 (fax) Email: [email protected] Attorneys for Defendants Melvin Cravin, Efrain Lona, and Glenda Stewart

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA SYDNEY SHACKERFORD, Case No. 2:19-cv-00469-GMN-DJA

Plaintiff,

UNOPPOSED MOTION TO EXTEND

v. THE DISPOSITIVE MOTIONS

DEADLINE BY FIFTY DAYS FROM

JAMES DZURENDA, et al., MAY 12, 2021, TO JULY 1, 2021

(FIRST REQUEST TO EXTEND THE

Defendants. DISPOSITIVE MOTIONS DEADLINE)

Defendants, Melvin Cravin, Efrain Lona, and Glenda Stewart, by and through counsel, Aaron D. Ford, Nevada Attorney General, and Alexander J. Smith, Deputy Attorney General, of the State of Nevada, Office of the Attorney General, hereby move to extend by a modest fifty days the dispositive motions deadline only from May 12, 2021, to July 1, 2021.1

On May 10, 2021, counsel for Defendants and Plaintiff Sydney Shackerford engaged in a pleasant, amicable, and co-operative telephonic meet and confer to discuss this motion

This motion is unopposed, and Defendants move for a dispositive motions deadline extension for the reasons stated below.

MEMORANDUM OF POINTS AND AUTHORITIES I. LAW AND ARGUMENT

A. Rule 6(b), Federal Rules Of Civil Procedure.

Rule 6(b)(1), Federal Rules of Civil Procedure, governs extensions of time and states:

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 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 party failed to act because of excusable neglect.

If additional time for any purpose is needed, the proper procedure is to present a request for extension of time before the time fixed has expired. Canup v. Mississippi Val. Barge Line Co., 31 F.R.D. 282 (W.D. Pa. 1962). An extension of time may always be sought and is usually granted on a showing of good cause if timely made under subdivision (b)(1) of the Rule. Creedon v. Taubman, 8 F.R.D. 268 (N.D. Ohio 1947).

B. Local Rules IA 6-1 And 26-3.

LR IA 6-1 requires that a motion to extend time must state the reasons for the extension requested and will not be granted if requested after the expiration of the specified period unless the movant demonstrates that the failure to file the motion before the deadline expired resulted because of excusable neglect. LR 26-3 requires that a motion to extend any date set by the discovery plan, scheduling order, or other order must, as well as satisfying the requirements of LR IA 6-1, demonstrate good cause for the extension, and such a motion filed after the expiration of the deadline will not be granted unless the movant demonstrates that the failure to act resulted from excusable neglect.

Finally, LR 26-3 lists four factors that are considered upon adjudication of a motion to extend a discovery deadline or to reopen discovery: (a) a statement specifying the (c) the reasons why the deadline was not satisfied or the remaining discovery was not completed within the time limits set by the discovery plan; and (d) a proposed schedule for completing all remaining discovery.

C. Good Cause Exists, Thus An Order Should Grant Defendants’ Motion

For An Extension Of The Dispositive Motions Deadline Here, good cause exists for extending the dispositive motions deadline by fifty days. Both parties intend to move for summary judgment, and Defendants will, among other things, argue that there is no genuine dispute as to any material fact concerning Shackerford’s Eighth Amendment excessive force claims; Defendants continue to assert that no constitutional violations occurred, thus Defendants are entitled to judgment as a matter of law. By extending the deadline by fifty days, Shackerford is under no danger of prejudice, and the delay is short.

Counsel for the defense, Attorney Smith, represents the interests of several hundred defendants in approximately fifty cases. Over the last six or so weeks, Attorney Smith has worked on several other summary judgments. Other tasks have included a complex Rule 12(c), Federal Rules of Civil Procedure, motion; much factual and legal research into a motion for a preliminary injunction to allow a particular faith-group access under the Religious Land Use and Institutionalized Persons Act to a prison chapel; several hearings and briefs in state court on the constitutional right of access to the courts in the COVID pandemic; several depositions; much discovery-related work; Attorney-General work- related training and office administrative tasks; mentoring and assisting newly appointed attorneys with their work; several mediation conferences and preparation beforehand; and all of the other routine tasks expected of an attorney.

Also, because of the nature of this case, Attorney Smith requires more time to obtain further declarations from Defendants and others and to finish his internal factual enquiries that will eventually assist the court in the adequate adjudication of Defendants’ motion for summary judgment, which will be filed if no settlement is reached following Shackerford’s over the last several weeks (and indeed months), Attorney Smith needs additional time in which to adequately move for summary judgment.

Finally, because of the COVID pandemic, Attorney Smith has continued to work from home most of the time, and this has made discovery and various other tasks more difficult than usual; his ability to access records (in addition to necessary declarations and the like) has been impeded and slowed down; however, Attorney Smith is working diligently to defend this action. In sum, for the reasons stated above and because no rushed work product is good work product, Attorney Smith needs additional time in order to adequately brief the court for summary judgment in this action.

D. The Four Factors Contained Within LR 26-3 Are Satisfied3 The four factors contained within LR 26-3—(a) a statement specifying the discovery completed; (b) a specific description of the discovery that remains to be completed; (c) the reasons why the deadline was not satisfied or the remaining discovery was not completed within the time limits set by the discovery plan; and (d) a proposed schedule for completing all remaining discovery—are satisfied. Defendants have completed discovery in this action, and no further discovery is needed. The reasons why Defendants are unable to adhere to the dispositive motions deadline are succinctly and thoroughly elaborated on at length in the preceding paragraphs. No discovery remains, but Defendants move to amend the scheduling order to extend by fifty days the May 12, 2021 dispositive motions deadline.

On May 10, 2021, counsel for Defendants met and conferred via telephone with Shackerford to discuss this motion to extend the deadline to file dispositive motions. Shackerford stated that this motion is unopposed.

II. CONCLUSION

Defendants demonstrate good cause to extend the dispositive motions deadline to July 1, 2021. Shackerford does not oppose this motion. Due to the nature of summary judgment and the time and complexity involved in adequately briefing the court, and because the Ninth Circuit and other appellate courts prefer to see that cases are tried on the merits and not on a technicality, Defendants respectfully move for an extension of time to file a motion for summary judgment and request that the due date be extended from May 12, 2021, to July 1, 2021.

DATED this 12th day of May, 2021.

AARON D. FORD Attorney General

By: /s/ Alexander J. Smith ALEXANDER J. SMITH (Bar No. 15484C) Deputy Attorney General Attorneys for Defendants

IT IS SO ORDERED.

Dated this _1_3__ day of May, 2021 ___________________________ Gloria M. Navarro, District Judge UNITED STATES DISTRICT COURT

I certify that I am an employee of the State of Nevada, Office of the Attorney General, and that on May 12, 2021, I electronically filed the foregoing UNOPPOSED MOTION TO EXTEND THE DISPOSITIVE MOTIONS DEADLINE BY FIFTY DAYS FROM MAY 12, 2021, TO JULY 1, 2021 (FIRST REQUEST TO EXTEND THE DISPOSITIVE MOTIONS DEADLINE) via this Court’s electronic filing system. Parties who are registered with this Court’s electronic filing system will be served electronically.

Sydney Shackerford, #1148998 High Desert State Prison P.O. Box 650 Indian Springs, Nevada 89070 Email: [email protected] Plaintiff, Pro Se

/s/ Carol A. Knight

CAROL A. KNIGHT, an employee of the Office of the Nevada Attorney General