Free Motion for Extension of Time - District Court of Arizona - Arizona


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Stephen D. Hoffman, #13875 LEWIS BRISBOIS BISGAARD & SMITH LLP Phoenix Plaza Tower II 2929 North Central Avenue, Suite 1700 Phoenix, Arizona 85012-2761 Telephone: (602) 385-1040 Facsimile: (602) 385-1051 Attorneys for Wong and World Nutrition

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

MARLYN NUTRACEUTICALS, INC., an Arizona corporation, Plaintiff,

No. CIV 02-1876 PHX-HRH THIRD-PARY PLAINTIFF WORLD NUTRITION'S RULE 6(b)(1)(B) MOTION TO EXTEND TIME (Assigned to The Honorable H. Russell Holland)

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vs.
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WILLIAM WONG and JANE DOE WONG, husband and wife; PATRICK BUEHL and JANE DOE BUEHL, husband and wife; WORLD NUTRITION, INC., an Arizona corporation; ABC Corporations I-X; XYZ PARTNERSHIPS I-X; and JOHN DOES I-X and JANE DOES I-X, husbands and wives, respectively, Defendants,

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WORLD NUTRITION, INC., an Arizona corporation, Third Party Plaintiff/Counterclaimant/ Defendant, vs.

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MARLYN NUTRACEUTICALS, INC., an Arizona Corporation; and CRAIG KNOBLOCH, Counterdefendant/Plaintiff/Third Party Defendant.

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Third-Party Plaintiff, World Nutrition, Inc. ("World Nutrition") hereby moves the Court, pursuant to Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure, for the setting of March 27, 2008 as the deadline to submit its Memorandum in Support of its motion for attorneys' fees.1 This motion is supported by the attached memorandum of points and authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. Authority

Rule 6(b)(1)(B) provides that the Court may extend the time for a particular act upon good cause shown if the party failed to act because of excusable neglect. Determining whether neglect in a particular case is excusable rests within the sound discretion of the district judge. Graham v. Pennsylvania R.R., 119 U.S. App. D.C. 335, 342 F.2d 914 (1964), cert. denied, 381 U.S. 904, 14 L. Ed. 2d 286, 85 S. Ct. 1446 (1965). II. Standard of Review

The determination whether a party's conduct constitutes "excusable neglect" is an equitable one that requires a court to consider all relevant circumstances. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395, 123 L. Ed. 2d 74, 113 S. Ct. 1489 (1993). For that reason the notion is an "elastic concept." 4A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure 1165, at 479 (2d ed. 1987); see also Pioneer, 507 U.S. at 392. Excusable neglect may be found where the relevant circumstances reveal inadvertent delays, mistakes, or carelessness. See id. at 388. Mere inadvertence, without more, can in some circumstances be enough to constitute excusable neglect justifying relief under FRCP 6(b)(2). Raymond v IBM, 148 F.3d 63, 136, (1998, CA2 Vt) 40 FR Serv 3d 1177. Whether or not a party will be substantially prejudiced by the court's action is one factor to consider. Supermarkets General Corp. v. Grinnell Corp., 490 F.2d 1183.

Generally, Rule 6(b)(1)(B) should be liberally construed in order that litigants be given
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As set forth below, technically the deadline for the memorandum in support of the motion for attorneys' fees would have expired before the motion for attorneys' fees deadline, as extended.

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opportunity to be heard, and given their day in court so that justice may be served. Anderson v. Stanco Sports Library, Inc., 52 F.R.D. 108. III. Argument

A memorandum in support of a motion for attorneys' fees is not required to be filed at the same time as the motion for fees. Local Rule 54.2 provides that the motion to be filed within 14 days after entry of judgment and the memorandum in support of the motion to be filed within 60 days after entry of judgment. Undersigned counsel would note that the traditional deadlines for certain post-trial submissions have understandably been altered in this case from time to time. As the Court is aware, the judgment against Mr. Knobloch was entered on December 3, 2007 (See, Clerk's Docket No. 331.) Thereafter, on January 7, 2008, the parties attended a settlement conference, discussing global settlement issues. The parties stipulated to extend the time for World Nutrition to file its motion for attorneys' fees until January 14, 2008, and the Court granted that stipulation. (See, Clerk's Docket Nos. 332 & 333.) Thereafter, because the parties were still involved in global settlement negotiations, the parties against stipulated to extend the deadline to file the motion for attorneys' fees as to Mr. Knobloch until February 18, 2008, and the Court granted that stipulation. (See, Clerk's Docket Nos. 334 & 336.) As a result of these various extensions, the deadline to file the memorandum in support of the motion for fees would have expired prior to the deadline to file the actual motion for attorneys' fees. In this case, the memorandum in support of the motion for attorneys' fees was not filed at the same time as the motion for attorneys' fees. This is understandable, as they are not normally filed simultaneously and the local rule provides that they may be filed roughly 45 days apart. Due to the fact that the memorandum in support of a motion for attorneys' fees has a separate calendaring deadline, and because of the various extensions of the deadline to file the motion for attorneys' fees, there was no specific deadline for the memorandum in support to be filed. At the time the motion for attorneys' fees was filed, undersigned
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counsel inadvertently believed that there was additional time to file the memorandum in support due to the extensions that had previously been obtained and the normal staggering of the two deadlines. Undersigned counsel did not immediately review Third-Party

Defendant's response brief, as counsel was preparing for a trial. Once counsel did review the brief, counsel was still hopeful of reaching an agreement on the attorneys' fees issue (and a stipulation was filed extending the deadline for the reply brief), although that hope did not come to fruition. Additionally, a brief delay was due to counsel's illness. Third-party Plaintiff has no objection to Third-Party Defendant submitting a response to the memorandum in support of the motion for attorneys' fees, either by way of a direct response, or through a sur-reply to Third-party Plaintiff's Reply in Support of its Motion for Attorneys' Fees. No hearing has been set on this issue, and given the other remaining issues in the case, there will be no delay in the resolution of the case. In short, there will be no prejudice to Third-Party Defendant. In light of the fact that the memorandum in support has now been submitted in conjunction with Third-party Plaintiff's Reply in Support of its Motion for Attorneys' Fees, and given that there is no prejudice to Third-Party Defendant, Third-party Plaintiff would respectfully request that the Court set the deadline for Defendant's Memorandum in Support of its Motion for Attorneys' fees to be the same date of the filing of this motion, specifically March 27, 2008. Accordingly, Third-party Plaintiff hereby requests that the Court set the deadline for Third-party Plaintiff's Memorandum in Support of its Motion for Attorneys' Fees for March 27, 2008.
DATED this 27th day of March, 2008. LEWIS BRISBOIS BISGAARD & SMITH, LLP

By:________s/ Stephen Hoffman_________________ Stephen D. Hoffman Attorneys for Wong and World Nutrition

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CERTIFICATE OF SERVICE
I hereby certify that on the 27th day of March, 2008, a copy of the foregoing THIRDPARTY PLAINTIFF WORLD NUTRITION'S MOTION FOR RULE 6(b)(1)(B) EXTENSION was filed electronically. A Notice of Electronic Filing (NEF) will be sent by operation of the Court's Electronic Case Filing (ECF) system to the filing party, the assigned Judge and any registered user in the case as indicated on the NEF. All other parties will be served by regular U.S. mail. Parties may access this filing through the Court's system.

____S/Stephen D. Hoffman________________ Stephen D. Hoffman LEWIS BRISBOIS BISGAARD & SMITH LLP Phoenix Plaza Tower II 2929 North Central Avenue, Suite 1700 Phoenix, Arizona 85012-2761 Telephone: (602) 385-1040 Facsimile: (602) 385-1051

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