United States District Court, D. Arizona
ORDER
Dominic W. Lanza, United States District Judge
Pending
before the Court is Debtors/Adversary Plaintiffs/Appellants
Kenneth and Deanna Conner (the “Conners”)
“Motion for Leave to Consider Late-Filed Brief”
(Doc. 12), filed on the same day as their Opening Brief (Doc.
11). Also pending is the parties' “Joint Motion to
Extend Deadline for Filing Answering Brief and Response to
Appellants' Motion for Leave to Consider Late-Filed
Brief” (Doc. 13).
On
April 5, 2019, the Court ordered that the deadline for the
Conners to file their opening brief was April 19, 2019. (Doc.
5.) The Court further ordered that failure to comply with the
April 5, 2019 Order could result in “the Court taking
action for failure to perfect the appeal, including possible
dismissal pursuant to Rule 8020-1 of the Local Rules of
Bankruptcy Appeal Procedure.” (Doc. 5 at 2.)
On
April 10, 2019, the parties filed a joint motion to extend
the deadline for filing an opening brief, noting that the
Conners' counsel had an “incredibly busy
schedule” between April 10 and April 19, 2019, and
stipulating to a new deadline of May 3, 2019, which would
double the two-week span of time originally ordered by the
Court. (Doc. 6 at 2.) The Court granted the motion and
extended the deadline to May 3, 2019. (Doc. 7.)
May 3,
2019 came and went without any filing-no opening brief, no
motion for an additional extension.
Eleven
days later, on May 14, 2019, the Conners filed an Opening
Brief (Doc. 11), along with a “Motion for Leave to
Consider Late-Filed Brief” (Doc. 12). In the motion,
the Conners offered only the explanation that their counsel
had been busy with trips and other work. (Doc. 12 at 2.) The
Conners' counsel acknowledged that “the proper
route would have been to seek an extension prior to May
3”-but did not explain why he failed to do so-and also
acknowledged that “the ‘good cause' for leave
to [file late] may be thin.” (Id.) The Conners
nevertheless asked the Court to “consider both the
preference for trial on the merits . . . as well as the lack
of any conceivable prejudice to the other parties to this
appeal resulting from the delay” and offered to
mitigate whatever prejudice might exist. (Id.)
On May
24, 2019, the parties filed their “Joint Motion to
Extend Deadline for Filing Answering Brief and Response to
Appellants' Motion for Leave to Consider Late-Filed
Brief” (Doc. 13). The parties jointly request that the
Court extend two deadlines to June 11, 2019: the deadline for
Appellees to respond to the Conners' “Motion for
Leave to Consider Late-Filed Brief, ” and the deadline
for Appellees to respond to the Conners' Opening Brief.
(Doc. 13 at 3.)
The
Opening Brief (Doc. 11) should not have been filed. Pursuant
to LRBankr 8009-1(c)(2), “[a] brief received after the
due date will not be accepted for filing unless it is
accompanied by a motion for an extension of time and the
motion is granted.” (emphasis added). The
“Motion for Leave to Consider Late-Filed Brief”
(Doc. 12) is, in essence, a motion for an extension of time,
but it has not been granted. Therefore, the Court orders that
the Opening Brief (Doc. 11) is struck. If the Court
grants the motion at Doc. 12, the Conners may file their
Opening Brief after the motion is granted. As such,
to the extent that the parties' joint motion seeks an
extension of Appellees' deadline to respond to the
Conners' Opening Brief, that request is denied as moot.
The
Court will grant the parties' joint motion to the extent
that it seeks an extension of Appellees' deadline to
respond to the motion for an extension of time. The Court
will not rule on the pending “Motion for Leave to
Consider Late-Filed Brief (Doc. 12) until it is fully
briefed.
Accordingly,
IT IS ORDERED that the Opening Brief (Doc.
11) is struck from the record.
IT
IS FURTHER ORDERED that the parties'
“Joint Motion to Extend Deadline for Filing Answering
Brief and Response to Appellants' Motion for Leave to
Consider Late-Filed Brief (Doc. 13) is granted in part and
denied as moot in part.
IT
IS FURTHER ORDERED that to the extent that the
parties' joint motion seeks an extension of
Appellees' deadline to respond to the Conners'
Opening Brief, that request is denied as moot.
IT
IS FURTHER ORDERED that the deadline for Appellee to
respond to Appellants' Motion for Leave to Consider
Late-Filed Brief is extended from May 28, 2019 to June 11,
2019.
IT
IS FURTHER ORDERED that the deadline for the Conners
to file a reply in support of their Motion for Leave to
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