United States District Court, D. Arizona
Joshua R. Macias, Plaintiff,
Pegasus Group, LLC, et al., Defendants. Joshua R. Macias, Plaintiff,
PTI Security Systems, Defendant.
Dominic W. Lanza United Slates District Judge
April 30, 2019, the Court issued an Order granting pro se
Plaintiff Joshua R. Macias's application for leave to
proceed in forma pauperis in CV 19-01961-PHX-DWL (“PTI
case”), screening the Complaint (Doc. 1) pursuant to 28
U.S.C. § 1915(e)(2), and dismissing the complaint for
failure to state a claim on which relief may be granted and
for failure to plead facts establishing that the Court has
subject-matter jurisdiction. (Doc. 7.) The Court granted
leave to file an amended complaint by May 31, 2019.
(Id. at 4.) Plaintiff failed to file an amended
complaint by this deadline.
pending before the Court is Plaintiff's Motion (Doc. 8),
which seeks leave of the Court to file an amended complaint
after the deadline has passed, and additionally seeks leave
to “add another state address” and seeks an
extension of time to serve the summonses.
Plaintiff's motion purports to be a motion to amend, the
Court already granted leave to amend the complaint and
established a deadline for doing so. (Doc. 7 at 4.) Plaintiff
missed that deadline. Thus, the legal standard at issue is
the one applicable to a motion for an extension of time,
where such motion is made after the expiration of a deadline.
6(b)(1)(B) of the Federal Rules of Civil Procedure provides
that “[w]hen an act may or must be done within a
specified time, the court may, for good cause, extend the
time . . . on motion made after the time has expired if the
party failed to act because of excusable neglect.” The
Supreme Court has explained that “excusable neglect,
” in this context, can encompass mistakes and
carelessness: “Congress plainly contemplated that the
courts would be permitted, where appropriate, to accept late
filings caused by inadvertence, mistake, or carelessness, as
well as by intervening circumstances beyond the party's
control.” Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship, 507 U.S. 380, 388
the neglect is “excusable” is a flexible
standard, “at bottom an equitable one, taking account
of all relevant circumstances surrounding the party's
omission.” Id. at 395. At a minimum, courts
assessing whether neglect is “excusable” must
consider four factors: “ the danger of prejudice to
the [non-moving party],  the length of the delay and its
potential impact on judicial proceedings,  the reason for
the delay, including whether it was within the reasonable
control of the movant, and  whether the movant acted in
good faith.” Id. Failure to consider all four
factors constitutes an abuse of discretion. Lemoge v.
United States, 587 F.3d 1188, 1192-93 (9th Cir. 2009).
No. single factor is determinative. Bateman v. U.S.
Postal Serv., 231 F.3d 1220, 1224 (9th Cir. 2000);
Briones v. Riviera Hotel & Casino, 116 F.3d 379,
382 n.2 (9th Cir. 1997).
assessing whether a failure to act was caused by
“excusable neglect, ” a court may not impose per
se rules. Pincay v. Andrews, 389 F.3d 853, 855 (9th
Cir. 2004) (“We now hold that per se rules are not
consistent with Pioneer . . . .”). There can
be “no rigid legal rule against late filings
attributable to any particular type of negligence.”
Id. at 860 (affirming that a paralegal's
calendaring error was “excusable negligence.”).
Even when the reason for the delay is weak, where the
equities favor excusing the negligence, the court must do so.
Bateman, 231 F.3d at 1224-25 (reason for delay was
travel, jet lag, and the time it took to sort through mail).
district court has considered and weighed all four
Pioneer factors, and any other factors it deems
appropriate on a case-by-case basis, the court has broad
discretion to grant or deny the motion. Pincay, 389
F.3d at 859 (“[T]he decision whether to grant or deny
an extension of time . . . should be entrusted to the
discretion of the district court because the district court
is in [the best position] to evaluate factors such as whether
the lawyer had otherwise been diligent, the propensity of the
other side to capitalize on petty mistakes, the quality of
representation of the lawyers . . ., and the likelihood of
injustice if the appeal was not allowed.”).
Court first considers the danger of prejudice to Defendants.
This factor weighs in favor of Plaintiffs because Defendants
have not yet been served and have therefore suffered no
prejudice under the circumstances.
next Pioneer factor is the length of the delay.
Plaintiff's amended complaint was due Friday, May 31,
2019, and the motion requesting leave to file late was filed
the following Monday, June 3, 2019. This is not a lengthy
third Pioneer factor is the reason for the delay.
The reason offered by Plaintiff is that he received a call
from an unidentified person named “Nissy” and
checked his mail, and apparently these events, combined with
buses running late on May 31, prevented him from physically
arriving at the courthouse in time to timely file an amended
complaint or a motion to extend the deadline. This is a weak
reason. Plaintiff has an obligation to adhere to the