EX PARTE APPLICATION AND ORDER FOR EXTENSION OF TIME TO FILE OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

HAYWOOD S. GILLIAM, Jr., District Judge.

Plaintiff hereby applies to the Court ex parte for an Order extending time to file his opposition to defendants' motion for summary judgment or, in the alternative, summary adjudication, to March 30, 2015. The undersigned counsel has advised counsel for defendants that such an ex parte request will be made to this Court. Defendants' counsel has not indicated whether or not they will oppose such request.

Plaintiff has not sought or obtained any previous extensions of time. Such an extension is timely and is necessary because there are still unresolved discovery issues which discovery is essential to plaintiff's preparation of an opposition to the motion for summary judgment or, in the alternative, summary adjudication ("MSJ/MSA").

The motion will be based upon Federal Rules of Civil Procedure, rule 6(b); this Notice of Motion; the Memorandum of Points and Authorities; the Declaration of Carlton D. Floyd, attorney for plaintiff; the records and files in this action; and upon such further evidence and argument as may be presented prior to or at the time of hearing on the motion.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION AND ORDER FOR EXTENSION OF TIME

When an act may or must be done within a specified time, the court may, for good cause, extend the time with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires. (Fed. Rules Civ.Proc., § 6(b).)

Here, plaintiff's opposition to defendants' motion for summary judgment or, in the alternative, summary adjudication is due March 19, 2015.

However, there remains unresolved discovery issues which have been presented to the Court in the parties' Joint Letter re Discovery Dispute filed March 13, 2015. In that Joint Letter, plaintiff's counsel requested an extension of time of one week from March 19, 2015, within which to file his opposition to the MSJ/MSA. Defendants opposed plaintiff's request in the Joint Letter.

Plaintiff's counsel discovered today from the Court that the request for an extension of time included in the Joint Letter was not proper; therefore, plaintiff is now requesting the Court grant him an order extending his time to file an opposition to the MSJ/MSA by this ex parte application.

"Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable' neglect, it is clear that `excusable neglect' under rule 6(b) is a somewhat `elastic concept': and is not limited strictly to omissions caused by circumstances beyond the control of the movant. (Pioneer Investment Serv. Co. v. Brunswick Associates Ltd. Partnership (1993) 507 U.S. 380, 392.)

Here, because of plaintiff's counsel mistake in the procedure for requesting an extension of time within which to file an opposition to defendants' MSJ/MSA, plaintiff himself should not be prejudiced by said mistake.

Furthermore, there is a telephonic conference scheduled for Monday, March 23, 2015, at 2:00 p.m. between the parties before Magistrate Judge Nandor J. Vadas, in an effort to resolve the outstanding discovery disputes. Plaintiff is only requesting a 10-day extension in which to file his opposition to March 30, 2015, with the hopes that the discovery issues will be resolved, and he will be in a better position to formalize an opposition to the MSJ/MSA.

ORDER

Having considered plaintiff's ex parte application for an extension of time to file an opposition to defendants' motion for summary judgment or, in the alternative, summary adjudication, and finding good cause therefore,

IT IS HEREBY ORDERED that plaintiff has to and including March 30, 2015, by which to file such opposition.