(PS) CSPC Dophen Corporation v. Hu ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CSPC DOPHEN CORPORATION, No. 2:17-cv-1895 MCE DB PS 12 Plaintiff, 13 v. ORDER 14 ZHIXIANG HU, 15 Defendant. 16 17 Defendant and counterclaimant, Dr. Zhixiang Hu, Ph.D., is proceeding in this action pro 18 se. (ECF No. 68.) Accordingly, this action has been referred to the undersigned pursuant to 19 Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On July 20, 2020, the undersigned granted 20 defendant’s motion for alternative service of process pursuant to Rule 4(f)(3) of the Federal Rules 21 of Civil Procedure (“Rules”) and granted plaintiff twenty-eight days to serve process on the 22 counter defendants. (ECF No. 261 at 18.) On August 20, 2020, defendant filed a motion for a 23 14-day extension of time. (ECF No. 263.) Plaintiff filed an opposition to defendant’s request for 24 an extension of time. (ECF No. 269.) 25 Defendant’s motion explains defendant’s failure to comply with the 28-day deadline was 26 the result of “health problems during this Covid 19 pandemic period” resulting in visits “to the 27 Emergency Room twice for heart and breathing problems” and testing for Covid 19, necessitating 28 “self-quarantine.” (ECF No. 266 at 3.) Rule 6(b) of the Federal Rules of Civil Procedure 1 provides that “[w]hen an act may or must be done within a specified time, the court may, for good 2 cause, extend the time . . . on motion made after the time has expired if the party failed to act 3 because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). “This rule . . . ‘[is] to be liberally 4 construed to effectuate the general purpose of seeing that cases are tried on the merits.’” 5 Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258-59 (9th Cir. 2010) (quoting Rodgers v. 6 Watt, 722 F.2d 456, 459 (9th Cir. 1983)). “[T]he determination of whether neglect is excusable is 7 an equitable one that depends on at least four factors: (1) the danger of prejudice to the opposing 8 party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the 9 delay; and (4) whether the movant acted in good faith.” Bateman v. U.S. Postal Service, 231 F.3d 10 1220, 1223-24 (9th Cir. 2000). Excusable neglect “encompasses both simple, faultless omissions 11 to act and, more commonly, omissions caused by carelessness.” Pioneer Inv. Services Co. v. 12 Brunswick Associates Ltd. Partnership, 507 U.S. 380, 388 (1993). 13 Here, under the circumstances articulated by defendant’s motion, the undersigned finds 14 that defendant’s failure to act was not caused by carelessness and that defendant has demonstrated 15 good cause for granting the motion. Moreover, an evaluation of the above factors finds that they 16 weigh in favor of granting defendant’s motion. In this regard, there is little if any prejudice to the 17 non-moving party. The length of delay is quite short and would have minimal if any impact on 18 this judicial proceeding. The reason for the delay was not within defendant’s reasonable control 19 and defendant’s conduct was in good faith. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. Defendant’s August 28, 2020 motion for an extension of time (ECF No. 266) is 22 granted; and 23 24 //// 25 //// 26 //// 27 //// 28 1 2. Defendant shall have fourteen days from the date of this order to serve process on the 2 counter defendants’ United States based counsel/plaintiff’s counsel pursuant to Fed. R. 3 Civ. P. 4(f)(3). 4 | Dated: October 28, 2020 5 6 7 | DLB:6 UNITED STATES MAGISTRATE JUDGE DB\orders\orders.pro se\cspe1895.eot.serve.ord 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28