Howard v. United States ( 2024 )

1 JUAnSitOedN S Mtat.e Fs RAItEtoRrnSeOyN 2 District of Nevada Nevada Bar No. 7709 3 R. THOMAS COLONNA Assistant United States Attorney 4 REEM BLAIK Assistant United States Attorney 5 Nevada Bar No. 16386 501 Las Vegas Blvd. South, Suite 1100 6 Las Vegas, Nevada 89101 (702) 388-6336 7 Richard.Colonna@usdoj.gov Reem.Blaik@usdoj.gov 8 Attorneys for Federal Defendant 9 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 10 Deandre Michael Howard, Case No. 2:22-cv-01004-JAD-DJA 11 Plaintiff, 12 Federal Defendant’s Motion for Leave v. to Extend Time to File Motion for 13 Exception from Attendance United States of America; DOES I through Requirements for Settlement 14 X, inclusive and ROE Business Entities I Conference through X, inclusive, 15 (First Request) Defendants. 16 17 Pursuant to the Court’s Orders (ECF Nos. 73–74) and Local Rules (“LR”) 26-3 and 18 IA 6-1, the United States of America, by and through the Federal Bureau of Investigations 19 (“FBI”) (collectively “Federal Defendant”), hereby respectfully moves this Court for an 20 order granting leave of Court for Federal Defendant to file its Motion for Exception from 21 Attendance Requirements for Settlement Conference (“Exception Motion”). The Exception 22 Motion was due on October 25, 2024, but was inadvertently not filed due to a clerical 23 mistake. Upon discovering this mistake, on October 28, 2024, Federal Defendant conferred 24 with Plaintiff’s Counsel, who consents to this requested extension. This is Federal 25 Defendant’s first requested extension. 26 I. Introduction 27 The Court ordered a mandatory settlement conference in this matter, which is 28 calendared for November 8, 2024, at 10:00 AM. See ECF Nos. 73–74. The Court’s Order 1 Setting Settlement Conference requires “a representative with binding authority to settle this 2 matter up to the full amount of the claim to be present for the duration of the SC,” and that 3 any requests for exceptions to such attendance requirements be made at least 14 days before 4 the conference. See ECF No. 73 at p. 1. Federal Defendant intends to seek exception to this 5 attendance requirement, and respectfully requests leave of Court to belatedly file this request 6 due to excusable neglect. 7 II. Points and Authorities 8 Federal Defendant respectfully moves for an order granting leave of Court to file its 9 Exception Motion, due to excusable neglect. LR 26-3 states that “[an extension] request 10 made after the expiration of the subject deadline will not be granted unless the movant also 11 demonstrates that the failure to act was the result of excusable neglect.” See LR 26-3. This 12 Court has noted that excusable neglect encompasses situations in which the failure to 13 comply with a filing deadline is attributable to negligence or omissions caused by 14 carelessness. See Wells v. McMahon, No. 318-cv-00297-LRH-CBC, 2019 WL 1779566, at *5 15 (D. Nev. Apr. 22, 2019) (citing Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009)). 16 In determining whether the excusable neglect standard has been met, courts examine four 17 factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its 18 potential impact on the proceedings; (3) the reason for the delay; and (4) whether the 19 movant acted in good faith. See Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223–24 (9th 20 Cir. 2000). 21 Federal Defendant intends to request an exception to the representative attendance 22 requirement outlined in the Court’s Order Setting Settlement Conference (ECF No. 73). 23 Such a request was due on October 25, 2024. See ECF Nos. 73–74. Federal Defendant’s 24 failure to file this request is excusable under the applicable four-factor test. First, allowing 25 Federal Defendant to file its Exception Motion will not unfairly prejudice Plaintiff, as the 26 Exception Motion will be filed on October 28, 2024 (one business day after the original 27 deadline). Further, Plaintiff’s Counsel consents to the filing of this instant motion. 28 Moreover, Federal Defendant’s Exception Motion will have no substantive effect on 1 Plaintiff, as the Exception Motion is a routine filing that only requests permission for the 2 undersigned AUSAs to represent Federal Defendant at the settlement conference, rather 3 than having multiple government officials (often from various locations) attend the 4 conference. Federal Defendant’s Exception Motion, if accepted, will not hinder the 5 proceedings in this case—but rather expedite matters and also conserve resources. Second, 6 the length of the delay and potential impact on proceedings are minimal, as the Exception 7 Motion was due on Friday, October 25, and is now being filed on Monday, October 28. 8 Third, Federal Defendant’s delay was due to an inadvertent clerical issue. While the United 9 States Attorney’s Office’s docketing system tracks deadlines, the attendance exception 10 deadline was inadvertently not calendared following the rescheduling of the settlement 11 conference from October 21, 2024, to November 8, 2024. See ECF Nos. 73–74. Federal 12 Defendant’s delay in seeking an exception to the attendance requirement was due a clerical 13 calendaring error. This error was a regrettable mistake and was not done in disregard of this 14 honorable Court’s orders. Lastly, this motion is brought in good faith. Counsel for Federal 15 Defendant sought to correct this issue as soon as it was discovered on October 28, and did 16 so by immediately contacting Plaintiff’s Counsel and filing this instant extension request. 17 Federal Defendant ultimately seeks to conserve the time and resources of the Court and the 18 parties by filing its Exception Motion. If leave is granted and the Exception Motion is 19 granted, the undersigned AUSAs will fully participate in settlement discussions on behalf of 20 Federal Defendant. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 Il. Conclusion 2 Based on the foregoing, Federal Defendant respectfully moves this Court for an 3 || order granting leave of Court for Federal Defendant to file its Motion for Exception from 4 || Attendance Requirements for Settlement Conference, due to excusable neglect caused by 5 || an inadvertent clerical mistake. 6 Respectfully submitted this 28th day of October 2024. 7 JASON M. FRIERSON 8 United States Attorney 9 /s/ Reem Blaik R. THOMAS COLONNA 10 REEM BLAIK 1 Assistant United States Attorneys 12 13 4 IT IS SOQ ORDERED: 15 ID xX 16 DANIELJ.ALBREGIS ———<“—iC™S 17 UNITED STATES MAGISTRATE JUDGE 18 DATED: 10/29/2024 19 20 21 22 23 24 25 26 27 28