1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GILBERT SALINAS, Case No.: 21-CV-495 JLS (BLM)

12 Plaintiff,

ORDER REJECTING LATE-FILED

13 v. OPPOSITION AND REAFFIRMING

APRIL 22, 2021 ORDER

14 IA LODGING SAN DIEGO, L.L.C.,

a Delaware limited liability company; 15 (ECF Nos. 7, 8) and DOES 1 –10, 16 Defendants. 17

18 On April 22, 2021, the Court granted Defendant IA Lodging San Diego, L.L.C.’s 19 (“Defendant”) Motion to Dismiss Plaintiff’s Complaint (“Mot.,” ECF No. 5) and Request 20 for Judicial Notice in support thereof (“RJN,” ECF No. 5-3) pursuant to Civil Local Rule 21 7.1(f)(3)(c). See ECF No. 8 (the “Order”). Also on April 22, 2021, Plaintiff Gilbert Salinas 22 filed a late Opposition to the motion. See ECF No. 7 (“Opp’n”). In the accompanying 23 Declaration of Zachary Best in Support of Plaintiff’s Late Opposition to the Defense 24 Motion to Dismiss the Complaint (“Best Decl.,” ECF No. 7-1), Plaintiff’s counsel indicates 25 that the deadline to oppose “was miscalendared by our staff,” and “[t]he first Plaintiff’s 26 counsel became aware of the tardy filing, was upon the filing today of a notice of non- 27 opposition by the Defendant. Upon learning this, Plaintiff’s counsel dropped everything 28 and immediately began drafting the opposition.” Best Decl. ¶ 1. Plaintiff’s counsel 1 apologizes for the error. See id. The Best Declaration contains only one paragraph 2 addressing the late filing. 3 Pursuant to Federal Rule of Civil Procedure 6(b)(1)(B), “[w]hen an act . . . must be 4 done within a specified time, the court may, for good cause, extend the time . . . on motion 5 made after the time has expired if the party failed to act because of excusable neglect.” In 6 assessing “excusable neglect,” courts analyze the four Pioneer factors: “(1) the danger of 7 prejudice to the non-moving party, (2) the length of delay and its potential impact on 8 judicial proceedings, (3) the reason for the delay, including whether it was within the 9 reasonable control of the movant, and (4) whether the moving party’s conduct was in good 10 faith.” Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (en banc) (citing Pioneer Inv. 11 Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). 12 While there is “[n]o rigid legal rule against late filings attributable to any particular 13 type of negligence,” id. at 860, in Pioneer, the Supreme Court recognized that 14 “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually 15 constitute ‘excusable’ neglect,” 507 U.S. at 392. And, in Pincay, the Ninth Circuit 16 “recognize[d] that a lawyer’s failure to read an applicable rule is one of the least compelling 17 excuses that can be offered.” 389 F.3d at 859. Ultimately, the weighing of the Pioneer 18 factors is “entrusted to the discretion of the district court.” Pincay, 389 F.3d at 859; see 19 also id. at 860 (“[W]e leave the weighing of Pioneer’s equitable factors to the discretion 20 of the district court in every case.”). Although the Ninth Circuit in Pincay upheld the 21 district court’s finding of excusable neglect, it noted that, “[h]ad the district court declined 22 to permit the filing of the notice, we would be hard pressed to find any rationale requiring 23 us to reverse.” Id. at 859. 24 As an initial matter, Plaintiff has not, in accordance with Rule 6(b)(1)(B), moved for 25 an extension, instead simply filing his untimely Opposition. Even overlooking this 26 deficiency, however, the Court finds the Pioneer factors weigh against accepting Plaintiff’s 27 late-filed Opposition. The first factor weighs against accepting the filing. Because of 28 Plaintiff’s late filing, Defendant’s time to file a reply has lapsed; even overlooking that 1 ||/issue, Defendant would have to expend resources drafting a reply it no longer anticipated 2 || needing to file and a motion to extend time. The second factor weighs in favor of accepting 3 || the filing, as the delay was only one week and the case has only been pending for slightly 4 one month. 5 However, the third factor weighs strongly against accepting the late Opposition. 6 || “[T]he stated reason for the delay is the factor considered to be the linchpin in deciding 7 || whether carelessness or neglect is excusable.” Jn re Pelle, 571 B.R. 846, 853 (Bankr. C.D. 8 2017). As one district court noted, “[t]he moving party in Pincay offered detailed 9 ||reasons for the mistakes and delay. Here, Plaintiff merely offers conclusory declarations 10 || without a detailed description of why counsel’s [staff] made a mistake in calendaring.” 11 || Culpepper v. Merit, No. CV 07-4377R, 2008 WL 11343360, at *1 (C.D. Cal. June 30, 12 |}2008). Plaintiff's counsel litigates frequently in this District, yet offers no concrete reason 13 || for missing a deadline set by a straightforward and unambiguous rule. See S.D. Cal. CivLR 14 7.1(e)(2). The calendaring of the deadline was also fully within Plaintiff's counsel’s 15 || control. 16 The fourth factor weighs in favor of accepting the late-filed Opposition, as there is 17 indication that Plaintiff's counsel acted in bad faith. Finally, the Court notes that the 18 |]Order’s dismissal of Plaintiff's Complaint was without prejudice and granted Plaintiff 19 || leave to file an amended complaint. Thus, Plaintiff has not been prejudiced by the Court’s 20 || Order, and the Court is hopeful that an amended complaint may narrow the issues in any 21 future motion to dismiss filed by Defendant. Thus, on balance, the Court finds that the 22 || Pioneer factors weigh against accepting Plaintiff's late Opposition. 23 Accordingly, the Court REJECTS the Opposition (ECF No. 7) and REAFFIRMS 24 April 22, 2021 Order granting Defendant’s Motion (ECF No. 8). 25 IT IS SO ORDERED. 96 ||Dated: April 23, 2021 (een 77 on. Janis L. Sammartino United States District Judge 28