United States District Court, D. Nevada
M. Navarro, District Judge United States District Court
before the Court is Appellee Garman Turner Gordon LLP's
(“Appellee's”) Motion to Dismiss, (ECF No.
5). Appellant Fann Contracting Inc. (“Appellant”)
filed a Response, (ECF No. 7), and Appellee filed a Reply,
(ECF No. 11).
pending before the Court are Appellant's Motion to Extend
Time to File Opening Brief, (ECF No. 6), and Motion to
Consider Exhibit 548, (ECF No. 20). Appellee filed Responses,
(ECF Nos. 10, 21), and Appellant filed Replies, (ECF Nos. 12,
reasons discussed below, the Court DENIES
Appellee's Motion to Dismiss; GRANTS
Appellant's Motion to Extend Time; and
DENIES Appellant's Motion to Consider
April 15, 2019, the United States Bankruptcy Court for the
District of Nevada entered an Order granting Garman Turner
Gordon LLP's Application for Entry of Order Approving
Contingency Fee and Reimbursement of Expenses for the Period
of January 5, 2016 Through September 30, 2018. (Order, Ex. 1
to Not. Appeal, ECF No. 1-2). Appellant then appealed the
Bankruptcy Court's Order to this Court, and filed its
Notice of Appeal on April 25, 2019. (Not. Appeal, ECF No. 1).
On May 22, 2019, the Court received the Certificate of
Readiness from the Deputy Clerk of the U.S. Bankruptcy Court
based the completion of the Statement of Issues, Designation
of Record, and transcripts. (Not. Appeal, ECF No. 1); (Cert.
Readiness, ECF No. 3).
one month after the Court received the Certificate of
Readiness, Appellee filed its instant Motion to Dismiss on
the ground that Appellant had not timely filed its Opening
Brief. (Mot. Dismiss 1:26-2:1, ECF No. 5). The next day,
Appellant filed a Motion to Extend Time, which requested an
extension of three weeks to file its Opening Brief. (Mot.
Extend Time 1:24-2:2, ECF No. 6). Appellant also filed a
Motion for the Court to consider an additional exhibit
(“Exhibit 548”) as part of its review of the
Bankruptcy Court's decision. (Mot. Consider Exhibit 548,
ECF No. 20).
Motion to Dismiss and Motion to Extend Time
Rule of Bankruptcy Procedure 8018(a) states that, unless a
district court provides otherwise, “[t]he appellant
must serve and file a brief within 30 days after the
docketing of notice that the record has been transmitted or
is available electronically.” Fed. R. Bankruptcy P.
8018(a)(1). As a consequence for failing to file a brief on
time, “an appellee may move to dismiss the appeal-or
the district court . . . after notice . . . may dismiss the
appeal on its own.” Fed. R. Bankruptcy P. 8018(a)(4);
Fed. R. Bankruptcy P. 8003(a)(2).
original deadline for Appellant's opening brief in this
appeal was June 21, 2019. Appellee consequently filed its
instant Motion to Dismiss on June 28, 2019, when Appellant
had yet to file its Opening Brief by that time. In
Appellant's Motion to Extend Time, however, Appellant
states that its delay arose from its expectation that the
Court would enter a briefing schedule, as it had done in
other bankruptcy appeals in this District and in line with
Rule 8018(a)(1)'s language that the 30-day deadline
applies unless a district court specifies different time
limits. (Mot. Extend Time 2:13-21); (Resp. 3:4-7, ECF No. 7).
Appellant accordingly now requests a three-week extension
(from June 21, 2019, to July 19, 2019) to submit its Opening
Brief “based upon its incorrect determination of the
deadline.” (Mot. Extend Time 1:24-26, 3:13-16).
Rule of Bankruptcy Procedure 9006 applies to Appellant's
requested extension of time. See Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd., 507 U.S. 380, 383 (1993)
(noting that “Rule 9006 is a general rule governing the
. . . enlargement . . . of periods of time prescribed in
other bankruptcy rules”). Rule 9006(b)(1) states that,
if an extension is sought after the relevant time period
expires, a court may permit an enlargement of time when the
failure to act “was the result of excusable
neglect.” Fed. R. Bankruptcy P. 9006(b)(1). The
relevant factors in finding excusable neglect and permitting
an extension are: (1) the danger of prejudice to the debtor;
(2) the length of the delay and its potential impact on
judicial proceedings; (3) the reason for the delay, including
whether it was within the reasonable control of the movant;
and (4) whether the movant acted in good faith.”
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 395 (1993). No. single factor
is dispositive; and courts avoid using a per se rule
in applying these factors to specific circumstances. See
Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir. 2004).
all Pioneer factors but the third weigh in favor of
Appellant's extension of time to file its Opening Brief.
First, Appellant states that “the underlying issue in
this case is the amount of [Appellee's attorneys'
fees]. . . . [and] [t]hese fee have already been paid.”
(Reply 4:13-15, ECF No. 12). Next, the requested delay of
roughly three weeks is minimal and does not pose difficulties
with this case. Moreover, Appellant timely complied with the
requirements to file its notice of appeal, designations of
record, and statement of issues. With the last factor,
Appellant provides a declaration stating that counsel
“repeatedly checked the docket to confirm that no
briefing schedule had been set” as is usually done in
this District. (Decl. Blakeley Griffith ¶¶ 3-5, Ex.
1 to Mot. Extend Time, ECF No. 6-1). Counsel's continued
attention to the docket represents its willingness to comply
with a deadline from the Court, once one was set. The last
factor weighs against Appellant's requested extension
because its ability to file an Opening Brief was
counsel's error in assuming that it needed to wait until
the Court issues a briefing schedule. Nevertheless, the Court
does not find this single factor to outweigh the others in
light of Appellant's diligence in otherwise pursuing this
addition to the factors for excusable neglect provided in
Pioneer, Appellant contends that the Court's
analysis of Appellee's Motion to Dismiss should also
consider other factors applicable to dismissing an action for
failure to prosecute. (Reply 6:4-8:3, ECF No. 12). The
additional factors concern the public's interest in
expeditious resolution of litigation, the public policy
favoring the disposition of cases ...