(SS) Martinez v. Commissioner of Social Security ( 2019 )

JONATHAN O. PENA, ESQ. 1 CA Bar ID No. 278044 2 Peña & Bromberg, PLC 2440 Tulare St., Suite 320 3 Fresno, CA 93721 Telephone: 559-412-5390 4 Fax: 866-282-6709 5 info@jonathanpena.com Attorney for Plaintiff 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ) Case No. 1:19-cv-00074-SKO Marcos Martinez, ) 10 ) STIPULATION AND ORDER FOR Plaintiff, ) EXTENSION OF TIME 11 ) vs. ) (Doc. 16) 12 ) ANDREW SAUL, 1 ) 13 Commissioner of Social Security, ) ) 14 ) Defendant. ) 15 16 17 IT IS HEREBY STIPULATED, by and between the parties through their respective 18 counsel of record, with the Court’s approval, that Plaintiff shall have a 30-day extension of time, 19 from September 23, 2019 to October 23, 2019, for Plaintiff to serve on defendant with 20 OPENING BRIEF. All other dates in the Court’s Scheduling Order shall be extended 21 accordingly. 22 This is Plaintiff’s second request for an extension of time. Plaintiff respectfully states that 23 the requested extension is necessary due several merit briefs being due on the same week of our 24 prior due date; in additional, Counsel has had over 30 administrative hearings in the preceding two 25 26 1 Andrew Saul is now the Commissioner of Social Security and is automatically substituted as a 27 party pursuant to Fed. R. Civ. P. 25(d). See also section 205(g) of the Social Security Act, 42 28 U.S.C. § 405(g)(action survives regardless of any change in the person occupying the office of Commissioner of Social Security). 1 weeks; and participated in Continuing Legal Education with the National Organization of Social 2 Security Claimant Representatives which required Counsel to have limited access to his office. 3 Counsel requires additional time to fully brief the case. Defendant does not oppose the 4 requested extension. Counsel apologizes to the Defendant and Court for any inconvenience this 5 may cause. 6 Respectfully submitted, 7 8 Dated: September 26, 2019 PENA & BROMBERG, ATTORNEYS AT LAW 9 By: /s/ Jonathan Omar Pena 10 JONATHAN OMAR PENA 11 Attorneys for Plaintiff 12 13 Dated: September 27, 2019 MCGREGOR W. SCOTT 14 United States Attorney DEBORAH LEE STACHEL 15 Regional Chief Counsel, Region IX 16 Social Security Administration 17 By: */s/ Beatrice Na 18 Beatrice Na 19 Special Assistant United States Attorney Attorneys for Defendant 20 (*As authorized by email on September 27, 2019) 21 ORDER 22 23 Pursuant to the parties’ initial Stipulation and Order for Extension of Time (Doc. 14), 24 Plaintiff’s opening brief was due to be filed no later September 23, 2019. (Doc. 15.) Plaintiff filed 25 a second “Stipulation and Order for Extension of Time” on September 27, 2019—four days after 26 Plaintiff’s opening brief deadline expired. (Doc. 16.) 27 The Court may extend time to act after the deadline has expired because of “excusable 28 neglect.” Fed. R. Civ. P. 6(b)(1)(B). Here, although the Stipulation demonstrates good cause 1 under to support the request for extension of time (see Fed. R. Civ. P. 16(b)(4)), no such excusable 2 neglect has been articulated—much less shown—to justify the untimeliness of the request. 3 Notwithstanding this deficiency, given the absence of bad faith or prejudice to Defendant 4 (as evidenced by his agreement to the extension of time after the deadline) and in view of the 5 liberal construction of Fed. R. Civ. 6(b)(1) to effectuate the general purpose of seeing that cases 6 are tried on the merits, see Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258–59 (9th Cir. 7 2010), the Court GRANTS the parties’ stipulated request. The parties and their counsel are 8 cautioned that future post hoc requests for extensions of time will be viewed with disfavor. 9 IT IS HEREBY ORDERED that Plaintiff shall have an extension of time, to and including 10 October 23, 2019, by which to file his opening brief. All other deadlines set forth in the Scheduling 11 Order (Doc. 5) are modified accordingly. 12 13 IT IS SO ORDERED. 14 Sheila K. Oberto 15 Dated: September 30, 2019 /s/ . 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28