ORDER

DEFENDANTS' MOTION FOR ENLARGEMENT OF TIME TO OPPOSE PLAINTIFF'S MOTION REQUESTING TO BE EXCUSED FROM BEING ABLE TO SERVE DEFENDANTS WITH COPY OF FIRST AMENDMENT (ECF No. 40)

(FIRST REQUEST)

CARLA BALDWIN CARRY, Magistrate Judge.

Defendants, Renee Baker, Harold Byrne, Sheryl Foster and James Dzurenda, by and through counsel, Adam Paul Laxalt, Attorney General of the State of Nevada, and Heather B. Zana, Deputy Attorney General, hereby file their motion for enlargement of time to oppose Plaintiffs motion requesting to be excused from being able to serve Defendants with copy of first amendment. (ECF No. 40). This motion is made and based on the enclosed Memorandum of Points and Authorities and all the papers and pleadings on file.

MEMORANDUM OF POINTS AND AUTHORITIES

I. PROCEDURAL HISTORY AND INTRODUCTION

This is a pro se prisoner action brought by Plaintiff Shannon Carter #70773 (Plaintiff), against Nevada Department of Corrections (NDOC) Director James Dzurenda (substituted for James G. Cox), Deputy Director Sheryl L. Foster, Warden Renee Baker, and Associate Warden Harold M. Byrne for events that took place while he was incarcerated in Ely State Prison (ESP). (ECF No. 6) Plaintiff is allowed to go forward with two counts of denial of access to the courts based on the paging system (Count I) and the Unit 8(B) restrictions (Count II). (ECF No. 5 at 4:23-28).

Defense counsel is out of the office on emergency family medical leave and unable to adequately review documents within this case or respond to outstanding motions from Plaintiff. Therefore, it will now be very difficult to complete an opposition to Plaintiffs motion prior to the current September 18, 2018, deadline. For these reasons, Defendants respectfully request an extension of time to file a response/opposition to Plaintiffs motion in this case, requesting an extension from September 18, 2018, to October 5, 2018, so that counsel has time to get back in the office and sufficiently review documents and this case in order to adequately prepare a response/opposition to Plaintiffs motion in this case with the necessary briefing and exhibits.

II. APPLICABLE LAW AND ARGUMENT

Fed R. Civ. P. 6(b)(1) provides in pertinent part:

This Court has discretion to enlarge time "for cause shown . . . if request there for is made before the expiration of the period originally prescribed." NRCP 6(b)(1). This Motion for Enlargement of Time is timely filed, and this Court may enlarge time "for cause shown." NRCP 6(b)(1). Defense counsel believes additional time is needed. Therefore, Defendants request the additional time until October 5, 2018, to file their Opposition to Plaintiffs Motion.

To the extent that this Court concludes this Motion for Enlargement of Time is not timely filed this Court has discretion to enlarge time "upon motion made after the expiration of the specified period . . . where the failure to act was the result of excusable neglect." NRCP 6(b)(2). A party may demonstrate excusable neglect by showing "that (1) it acted in good faith, (2) it exercised due diligence, (3) there is a reasonable basis for not complying within the specified time, and (4) the nonmoving party will not suffer prejudice." Moseley v. Eighth Judicial Dist. Court, 124 Nev. 654, 668, 188 P.3d 1136, 1146 (2008). Defense Counsel acted in good faith and if not for a medical emergency would have responded timely. Even if this Motion for Enlargement of Time is not timely filed, enlarging time is appropriate. See id.; see also Huckabay Props., Inc. v. N.C. Auto Parts, LLC, 130 Nev. Adv. Op. 23, 322 P.3d 429, 433 (2014) (recognizing "the sound policy preference for deciding cases on the merits").

III. CONCLUSION

Based upon the foregoing, Defendants' respectfully requests the Court grant Defendants' Motion for Enlargement of Time up to and including October 5, 2018.

IT IS SO ORDERED.