A AAtRtoOrnNe yD G. FenOeRraDl 2 STEPHEN J. AVILLO, Bar No. 11046 Deputy Attorney General 3 State of Nevada 100 N. Carson Street 4 Carson City, NV 89701-4717 Tel: (775) 684-1159 5 E-mail: [email protected] 6 Attorneys for Defendants Paul Malay and Robert Smith 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 JAMES BARKER, Case No. 3:19-cv-00158-MMD-WGC 11 Plaintiff, 12 vs. ORDER GRANTING DEFENDANT’S MOTION FOR AN 13 BAKER, et al., EXTENSION TO FILE A DISPOSITIVE MOTION 14 Defendants. (FIRST REQUEST) 15 16 Defendants, Paul Malay and Robert Smith, by and through counsel, Aaron D. Ford, Attorney 17 General of the State of Nevada, and Stephen J. Avillo, Deputy Attorney General, hereby submits this 18 Motion for an Extension of Time to File a Dispositive Motion 19 This Motion is based on F.R.C.P. 6(b)(1)(A), LR 1A 6-1, and the following Memorandum of 20 Points and Authorities. 21 This is the first request for an extension of time to file a dispositive motion. 22 MEMORANDUM OF POINTS AND AUTHORITIES 23 This is an inmate civil rights action filed pursuant to

by Plaintiff, James Barker 24 (Plaintiff). Plaintiff has at least three cases, including this matter, that he has filed against Nevada 25 Department of Corrections (NDOC) defendants, that have made it through mandatory screening by the 26 Court pursuant to 28 U.S.C. § 1915A, and for which undersigned counsel is the attorney of record 27 representing Defendants. 28 / / / 2 Warden Baker, et al., Case No. 3:19-cv-0159-RCJ-WGC.1 For the first of the other two cases, undersigned 3 counsel filed a motion for summary judgment and a reply in support thereof, this past July and August. See 4 ECF Nos. 47 and 51 for Barker v. Baker, et al., Case No. 3:19-cv-0161-MMD-CLB. For the second of the 5 other two cases, counsel recently prepared a mediation statement in preparation for an early mediation 6 conference, scheduled for October 19, 2021. 7 In the instant matter, Plaintiff filed a Motion for Leave to Amend the Complaint (Second), which 8 Defendants did not oppose. ECF Nos. 22 and 24. The Magistrate Judge recommended denying Plaintiff’s 9 Motion, explaining that Plaintiff did not enunciate good cause for amending outside the scheduling order 10 deadline and that Plaintiff’s proposed amendments would be futile. ECF No. 27. Plaintiff objected to the 11 Report and Recommendation, but the Court adopted the Report and Recommendation in full. ECF Nos. 28 12 and 29. Thereafter, the Court issued a new scheduling order, setting September 20, 2021, as the deadline 13 for the filing of dispositive motions. ECF No. 30. 14 Unfortunately, undersigned counsel did not update his calendar—either his electronic calendar that 15 is part of the Microsoft Outlook email program, or his physical, day-planner calendar—with the updated 16 dispositive motion deadline. Counsel is usually aware, without consulting either calendar, of the 17 approximate date on which dispositive motions are due for all his cases. In this instance, however, counsel 18 thinks that he mentally conflated this matter with Plaintiff’s case in which he filed a dispositive motion. He 19 therefore neglected to realize a dispositive motion also was due in this matter. 20 FRCP 6(b)(1) governs extensions of time and provides as follows: 21 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 22 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 23 party failed to act because of excusable neglect. 24 LR 1A 6-1 substantively repeats the requirement that a motion made after time has expired may be granted 25 on showing of excusable neglect. 26 27 1 Under Fed.R.Evid. 201(b)(2), the Court may take judicial notice of all filings in Plaintiff’s other cases filed with the Court. See U.S. v. Wilson,

(9th Cir. 1980); Colpo Caldo, 28 LLC v. Trunk, Case No. 3:18-cv-00289-LRH-WGC,

, at *2, n.3 (D. Nev. Sep. 15, 1 Defendants submit that the failure to file a motion for summary judgment by September 20, 202 2 || 1s the result of excusable neglect. As discussed above, the failure resulted from a mistake in calendaring t 3 || due date, combined with some confusion caused by the presence of multiple cases from Plaintiff | 4 || undersigned counsel’s caseload. 5 Defendants’ request will not hinder or prejudice Plaintiff. Defendants make this request in go 6 || faith, and not to cause undue delay or for any other improper purpose. 7 Defendants therefore respectfully request an extension of the deadline to file a dispositive motic 8 || to October 29, 2021. This is a 39-day extension of the original deadline and is 14 days from the date of t 9 || filing of this Motion. 10 DATED this 15th day of October, 2021. 1] AARON D. FORD D Attorney General

13 By: /s/ Stephen J. Avillo STEPHEN J. AVILLO, Bar No. 11046 14 Deputy Attorney General 15 Attorneys for Defendants 16 17 18 IT IS SO ORDERED. 19 DATED: October 18, 2021. bit. CG. Coth “0 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28