Beraha v. State of Nevada ( 2019 )

WA wih TN WL LAWN ETL ok FUN Boh peMyyAwe 1 || AARON D. FORD Attorney General 2 || KATLYN M, BRADY Bar No. 14173 Deputy Attorney General 3 || State of Nevada Office of the Attorney General 4 || 555 E. Washington Ave., Suite 3900 Las Vegas, Nevada 89101 5 || (702) 486-0661 tpngne) (702) 486-3773 (fax) 6 || katlynbrady@ag.nv.gov 7 || Attorneys for Defendants Renee Baker, James Dzurenda, 8 || William Gittere and William Reubart 9 10 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 || ARTHUR JULIUS-GREEN BERAHA fka TRAVERS A. GREEN, Case No. 3:17-cv-00366-RCJ-CLB 14 DEFENDANTS’ MOTION FOR 15 Plaintiff, EXTENSION OF TIME TO FILE SUMMARY JUDGMENT MOTION 16 |l Vv. (First Request) 17 || STATE OF NEVADA, et al., 18 Defendants. 19 20 Defendants, Renee Baker, James Dzurenda, William Gittere, and William Reubart 21 llby and through counsel Aaron D. Ford, Attorney General of the State of Nevada, anc 22 || Katlyn M. Brady, Deputy Attorney General, requests this Court grant a thirty (80) da; 23 |! extension of time to file a summary judgment motion. 24 INTRODUCTION 25 This Court should grant Defendants’ motion for an extension of time to file □ 26 || summary judgment motion. On November 19, 2019, undersigned counsel was assigned t 27 || represent the Defendants in this matter because the previous Deputy Attorney Genera 28 || unexpectedly left the Office of the Nevada Attorney General. Further, due to th WADE Vet POET UU hae Re NN eet 1 || Thanksgiving holiday, undersigned counsel will be unable to complete a review of the 2 || record and prepare a summary judgment motion before the deadline of December 2, 2019. 3 BACKGROUND 4 On January 18, 2018, Plaintiff filed the First Amended Complaint. ECF No, 10. On 5 || June 15, 2018, this Court filed its screening order. ECF No. 12. This Court allowed the 6 || following claims to proceed: 7 e Count I alleging a due process violation and a statutory violation against 8 former Director Dzurenda. ECF No. 12 at 12:14-17. 9 Count II, alleging free exercise, FLUIPA, and equal protection violations 10 against former Director Dzurenda, former Warden Filson, and Bryen. Jd. at 11 12:18-19. 12 e Count III, alleging federal telecommunication violations against Century 13 Link, EPSI, and ICS. Further, Count III alleged a violation of □□□□□□□□ 14 Deceptive Trade Practices Act against Century Link, EPSI and ICS, Id. a 15 12:21-24, 16 On June 3, 2019, this Court entered its scheduling order. ECF No. 87. The origina 17 || deadline for dispositive motions was October 2, 2019, ECF No. 87 at 3:27-27 — 4:1. 18 On September 26, 2019, Plaintiff filed the Second Amended Complaint. ECF Nc 19 || 105. Plaintiff alleged the following claims: 20 © Count I alleged a due process violation and statutory violation claim agains former Director Dzurenda, in his official capacity only. Id, at 2-4, 22 e Count II alleged religious claims against former Director Dzurenda, Williar 23 Gittere, and William Reubart. Id. at 5-7. 24 e Count III alleged religious claims regarding the ALEPH Institute again: 25 former Director Dzurenda and William Gittere. Id. at 7-9. 26 || Defendants filed an answer on October 17, 2019. ECF No. 108. 27 Plaintiff previously filed two requests to enlarge the discovery period. ECF No. € 28 || (noting it was Plaintiffs second request). On September 26, 2019, this Court grante ee eee NN EN an te NN NA ee et Ge NE NA Ne 1 Plaintiffs motion and extended discovery. ECF No. 104. This Court noted no further 2 || discovery extensions would be granted. Id. 3 On November 19, 2019, undersigned counsel was assigned to represent James 4 Dzurenda, Renee Baker, William Gittere, and William Reubart. Undersigned counsel 5 || promptly filed a notice of change of Deputy Attorney General, ECF No. 111, This change 6 || was prompted by the sudden, and unexpected, resignation of Deputy Attorney General 7 || Matthew J. Frauenfeld. See Declaration of counsel. 8 On November 25, 2019, undersigned counsel engaged in a meet and confer with 9 || Plaintiff regarding the dispositive motion deadline. See Declaration of Counsel. However, 10 || Plaintiff has refused to agree to extend the dispositive motion deadline. Id, Plaintifi 11 || explained that because he already prepared his motion for summary judgment, he was 12 || not inclined to allow Defendants extra time to prepare their motion. 13 Defendants now request this Court grant a thirty (30) day extension of the 14 || dispositive motion deadline. 15 APPLICABLE LAW 16 Pursuant to Federal Rule of Civil Procedure 6(b)(1)(A), this Court may extend th: 17 ||time to perform an act within a specific time for good cause shown. Similarly, FRCI 18 || 16(b)(4) permits a court to modify a scheduling order for good cause. The good caus 19 inquiry focuses on the moving party’s diligence. See Johnson v. Mammoth Recreations 20 || Inc., 975 F.2d 604, 608-09 (9th Cir. 1992). Local Rule 26-4 requires all motions to exten 91 \|a deadline set forth in a scheduling order to be filed no later than 21 days before th 22 |lexpiration of the subject deadline. “A request made after the expiration of the subjec 53 || deadline will not be granted unless the movant also demonstrates that the failure to ac 24 || was the result of excusable neglect. 25 ||/// 26 |/// 27 \Vl// 28 |/// ee NNN NNN FN ee EN I rN I Rr UN ee 1 LEGAL ARGUMENT 2 This Court should grant Defendants’ motion to extend the dispositive motion 3 || deadline. 4 ||A, Defendants Provide the Following Information Pursuant to LR 26-4. 5 First, the following discovery has been completed to date (LR 26-4(a): 6 e Director Dzurenda has responded to two sets of Requests for Admissions, 7 responded to three sets of Production of Document Requests and one set of 8 Interrogatories. 9 e Warden Gittere has responded to one set of requests for admissions. 10 The Defendants, collectively, have responded to one set of requests fox 11 admissions (document authentication requests) and a request for the 12 Production of Documents 13 Second, the only outstanding discovery issue is Plaintiffs pending motion □ 14 || compel discovery directed at Wells Fargo, ECF No. 112. LR, 26-4(b). However, during ¢ 15 || telephonic meet and confer, Plaintiff stated he did not believe this pending motion □□□□ 16 || impact the dispositive motions. See Declaration of Counsel. 17 Third, the reason the current dispositive motion deadline cannot be met is th 18 || sudden, and unexpected, resignation of the previous Deputy Attorney General Matthew J 19 || Frauenfeld. See Declaration of Counsel. It was expected that DAG Frauenfeld woul 20 ||complete the dispositive motion before the December 2, 2019 deadline, However, DAC 21 || Frauenfeld, unexpectedly resigned his position, which required that this matter b 92 ||veassigned to undersigned counsel. Undersigned counsel received this matter 0. 23 || November 19, 2019. 24 Further, due to the upcoming Thanksgiving Holiday, the Office of the Nevad 95 || Attorney General will be closed on November 28th and 29th. The closure of the offic 26 || further impacts undersigned counsel's ability to complete a dispositive motion before tk 27 || December 2, 2019 deadline. 28 NN NN Ee ES rE OEM 1 Fourth, Defendants propose the following schedule: 2 e Dispositive motions due Thursday, January 2, 2020 3 e Joint Pretrial Order shall be filed no later than Monday, February 3, 2020, or 4 thirty (30) days after the decision of any pending dispositive motions 5 |B. Excusable Neglect and Good Cause Support an Extension 6 This Court should find that excusable neglect and good cause support an extension 7 \lof time. Excusable neglect exists for failing to comply with the 21 day requirement set out g LR 26-4, Undersigned counsel did not receive this case until November 19, 2019. 9 || Accordingly, undersigned counsel could not comply with LR 26-4 because she was 10 || unaware that she would receive this matter until the deadline had passed. Further, the 11 || Office of the Nevada Attorney General could not take steps before the deadline tc 12 || reassign the matter, as Matthew Frauenfeld’s resignation was sudden and unexpected, 13 Further, since receiving this matter, undersigned counsel has diligently attemptec 14 ||to familiarize herself with this matter. This includes arranging a telephonic meet anc 15 || confer with Plaintiff to discuss the dispositive motion deadline and the pending motion t 16 || compel. Accordingly, good cause exists for an extension. 17 Finally, Defendants will be prejudiced without an extension. Without an extension 18 || Defendants will be unable to present a motion for summary judgment in their favor 19 || Accordingly, Defendants will be prejudiced, through no fault of their own, if an □□□□□□□□□ 20 || is not granted. 21 CONCLUSION 22 This Court should grant an extension of the dispositive motion deadline. Excusabl 23 || neglect exists for the extension due to the sudden, and unexpected, resignation of th 24 || DAG previously assigned to this matter. Further, good cause exists because undersigned 25 l/l 26 27 28 |\/// WADE 9.4 FUUNTUY UU I BPI Re MN eee 1 || Counsel has diligently worked on this matter since receiving the assignment, but will be 2 || unable to complete the motion for summary judgment. 3 DATED this 26th day of November, 2019. 4 Respectfully submitted, 5 AARON D. FORD 6 Attorney General ’ By: /s/ Katlyn M. Brady = KATLYN M. BRADY, Bar No. 14178 8 Deputy Attorney General 9 Attorneys for Defendants 10 ORDER 12 IT IS SO ORDERED. Defendants shall have until January 2, 2020, to file a Motior 13 || for Summary 14 Dated this BI day ott LY Lem BLK 2019. 15 16 7 UNITED TES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 NT A NNN NNN FN a NN EEE DUN NN RE aN RM eee CERTIFICATE OF SERVICE 2 I certify that I am an employee of the State of Nevada, Office of the Attorney 3 || General, and that on November 26, 2019 I electronically filed the foregoing document via 4 ||this Court’s electronic filing system. Parties that are registered with this Court’s 5 |lelectronic filing system will be served electronically. For those parties not registered, 6 || service was made by depositing a copy for mailing in the United States Mail, first-class 7 || postage prepaid, at Las Vegas, Nevada to the following: g || Arthur Julius-Greene Beraha, #48494 9 Ely State Prison P.O. Box 1989 10 || Ely, NV 89301 11 12 _/s/ Mary Pizzariello____ An employee of the Office 13 of the Attorney General 14 15 16 17 18 19 20 21 22 23 24 25 26 . 27 28 ATTACHMENT Declaration of Counsel ATTACHMENT Net A eh OO EO ON be Wr TE FE el DB ells et Eh Vw ee wt 1 || AARON D. FORD Attorney General 2 || KATLYN M. BRADY Bar No. 141738 Deputy Attorney General 3 || State of Nevada Office of the Attorney General 4 555 E. Washington Ave., Suite 3900 Las Vegas, Nevada 89101 5 || (702) 486-0661 tpngne) (702) 486-3773 (fax) 6 || katlynbrady@ag.nv.gov 7 || Attorneys for Defendants Renee Baker, James Dzurenda, 8 || William Gittere and William Reubart 9 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA 12 || ARTHUR JULIUS-GREEN BERAHA fka TRAVERS A. GREEN, Case No. 3:17-cv-00366-RCJ-CLB 1 ° DECLARATION OF COUNSEL 14 Plaintiff, 15 | V- 16 || STATE OF NEVADA, et 17 Defendants. 18 19 DECLARATION OF KATLYN M, BRADY 20 I, Katlyn M. Brady, being first duly sworn under oath, deposes and states as 91 || follows: 22 1. I am an attorney licensed to practice law in all courts within the State o: 93 || Nevada, and am employed as a Deputy Attorney General in the Office of the □□□□□□ 24 || Attorney General. I have been assigned to represent Defendants in Green v. State o, 25 || Nevada, et al., Case No. 3:17-cv-00366-RCJ-CLB and as such, have personal knowledge o 26 || the matters contained herein. 27 2. The deadline to file dispositive motions is December 2, 2019. 28 NNN Net NN ATT CE rN Re Eee Nw 1 3, Due to the ual and unexpected, resignation of Matthew J. Frauenfeld, I 2 || was assigned to represent the Defendants on November 19, 2019. 3 4, After receiving this assignment, I promptly filed a notice of change of Deputy 4 || Attorney General. I also began the process of arranging a meet and confer to discuss the 5 || dispositive motion deadline with Plaintiff. 6 5. On November 25, 2019, I conducted a meet and confer with Plaintiff to 7 discuss extending the dispositive motion deadline. Plaintiff informed me he was not g || willing to extend the dispositive motion deadline. Plaintiff explained that he did not 9 || believe his pending motion to compel would affect dispositive motions as he intended to 10 the documents at trial instead. Further, Plaintiff explained he was not willing to 11 || provide the Defendants additional time “to get his case dismissed[.]” I explained to 12 || Plaintiff that I believed good cause and excusable neglect existed because I had just 13 l|inherited this case and needed time to review all of the discovery documents. Plaintif 14 || again refused to agree to an extension and I informed him I would then file a motion tc 15 || extend the deadline. 16 6. I have begun reviewing all of the discovery provided in this matter, as well 17 || as reviewing the Second Amended Complaint and the legal issues presented, However 18 due to the short time frame, and the upcoming Thanksgiving holiday, I am unable tc 19 || complete Defendants’ motion for summary judgment before December 2, 2019. Further 20 \lthe Office of the Nevada Attorney General will be closed from November 28th tc 21 || November 29th. This will further impact my ability to complete the motion for summary} 22 || judgment. 23 7. I am requesting this enlargement of time due to excusable neglect, anc 24 || affirm that I am not engaging in purposeful delay. 25 Executed on this 26th day of November, 2019, 06 4, Z Katlyn M. Brady (Bar No. 14173) 28