Leuthauser v. United States of America

[3] 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 MICHELE LEUTHAUSER, Case No. 2:20-CV-479 JCM (VCF) 8 Plaintiff(s), ORDER 9 v. 10 UNITED STATES OF AMERICA, et al., 11 Defendant(s). [12] 13 Presently before the court is plaintiff Michele Leuthauser’s motion for leave to file her 14 supplemental brief out-of-time. (ECF No. 122). Defendant United States filed a response [15] opposing Leuthauser’s motion. (ECF No. 123). For the reasons stated below, the court denies [16] Leuthauser’s motion. [17] I. Background [18] 19 This case involves allegations of assault committed by a Transportation Security 20 Administration employee. (ECF No. 1). The court previously granted summary judgment in [21] favor of the government and closed the case. (ECF No. 98). Leuthauser appealed, and the Ninth [22] Circuit reversed this court’s decision and remanded the case for further proceedings. (ECF No. [23] 110). The court then vacated its summary judgment order and instructed the parties to file [24] 25 supplemental briefs. (ECF No. 113, 119). 26 The court ordered the government to file its supplemental brief by February 2, 2024. [27] (ECF No. 119). The court gave Leuthauser 14 days to respond to the government’s brief. (ECF [28] No. 119). The government filed its brief on February 1, 2024. (ECF No. 121). Leuthauser filed 1 her response on March 24, 2024—exactly fifty-three days after the government filed its brief. [2] (ECF No. 122). [3] The government argues that Leuthauser has not shown good cause for the court to [4] consider her late-filed brief. (See generally ECF No. 123). [5] 6 II. Legal Standard 7 Pursuant to Federal Rule of Civil Procedure 6(b)(1)(B), when an act must be done within [8] a specific time, the court may, “for good cause, extend the time on motion made after the time [9] has expired if the party failed to act because of excusable neglect.” Excusable neglect is [10] considered an “elastic” concept that examines factors such as the length of the delay, the reason [11] 12 for the delay, and whether the delay was within the “good faith” of the movant. Briones v. 13 Riviera Hotel & Casino, 116 F.3D 379, 381 (9th Cir. 1997) (quoting Pioneer Inv. Servs. Co. v. [14] Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 391, 395 (1993)). Whether to accept a late15 filed brief is within the district court’s sound discretion. Ahanchian v. Xenon Pictures, Inc., 624 16 F.3d 1253 , 1258–59 (9th Cir. 2010). [17] 18 III. Discussion 19 Leuthauser asks this court to consider her supplemental brief even though it was filed [20] past the court-ordered deadline. (ECF No. 122). Leuthauser informs the court that the deadline [21] was missed due to “technical error or otherwise.” (ECF No. 122, at 1). The government opposes [22] Leuthauser’s motion on the grounds that Leuthauser filed her brief late and failed to demonstrate [23] 24 either reasonable diligence or good cause. (ECF No. 123, 1-2). The government argues that 25 mere technical errors, on a brief filed over a month late, is not “good cause.” (ECF No. 123, at [26] 2). [28] 1 Merely claiming “technical error or otherwise,” without more, is insufficient to satisfy [2] excusable neglect. (ECF No 122, at 1). After considering the relevant factors, the court is [3] satisfied that denial of Leuthauser’s motion for leave to file her supplemental brief out-of-time is [4] warranted in the interests of justice. The length of Leuthauser’s delay was substantial, she did [5] 6 not provide adequate justification for her delay, and she did not provide evidence that the delay 7 was in good faith. (See generally ECF No. 122). The court largely considers the fact that the [8] brief was not just a couple of days late but was filed over a month past the deadline, and [9] Leuthauser has not even attempted to adequately explain the delay. (ECF No. 122). [10] Rule 6(b)(1)(B) must be “liberally construed” to ensure that cases are decided on the [11] 12 merits instead of technicalities. Ahanchian, 624 F.3d at 1258–59. However, the content in 13 Leuthauser’s late-filed supplemental brief does not add to the merits of her case as it is a mere [14] restatement of her original arguments in opposition to the government’s motion for summary [15] judgment. (See generally ECF No. 122; see also ECF No. 94). Because Leuthauser fails to [16] show excusable neglect under Rule 6(b)(1)(B), her motion is denied, and the court will not [17] 18 consider her late-filed brief. (ECF No. 122-1). 19 IV. Conclusion [20] Accordingly, [21] IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiff Michele [22] Leuthauser’s motion for leave to file her supplemental brief out-of-time (ECF No. 122) be, and [23] 24 the same hereby is, DENIED. [25] DATED June 24, 2024. [26] __________________________________________ 27 UNITED STATES DISTRICT JUDGE