Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSHUA ORONA, individually and on Case No.: 25cv140-LL-AHG behalf of all others similarly situated, 12 ORDER: Plaintiff, 13 v. (1) GRANTING PATAGONIA’S EX 14 PARTE APPLICATION TO EXCUSE PATAGONIA, INC., 15 PATAGONIA’S LATE FILING Defendant. [ECF No. 38]; 16 17 (2) DENYING PLAINTIFF’S EX PARTE MOTION TO STRIKE 18 DEFENDANT’S UNTIMELY FILING 19 [ECF No. 37] 20 21 On August 7, 2026, Defendant Patagonia, Inc. filed an Ex Parte Application to 22 excuse its one-day delay in filing its motion to dismiss Plaintiff Joshua Orona’s second 23 amended complaint. ECF No. 38. Counsel for Defendant contends that their response was 24 due on August 6, 2026, but was instead filed on August 7, 2026 due to counsel’s excusable 25 neglect in calendaring the deadline on the wrong day due to an inadvertent calendaring 26 error. Id. at 4; ECF No. 38-2, Declaration of Meegan Brooks (“Brooks Decl.”), ¶ 3. Defense 27 counsel attests that she discovered the filing error on August 7, 2026, after the motion to 28 dismiss was filed. Brooks Decl. ¶ 3; ECF No. 37-1, Declaration of Leslie L. Pescia, ¶ 8 1 (attesting that defense counsel attempted to call her an hour after filing Defendant’s motion 2 to dismiss). She left Plaintiff’s counsel a voicemail and text message explaining the issue 3 and then filed the instant Ex Parte Application when opposing counsel declined to stipulate 4 to allow the late filing. Brooks Decl. ¶¶ 4–7. Also on August 7, 2026, Plaintiff filed an Ex 5 Parte Motion to strike Defendant’s untimely filing. ECF No. 37. 6 If a deadline has passed, Federal Rule of Civil Procedure 6(b) states that generally 7 “[w]hen an act may or must be done within a specified time, the court may, for good cause, 8 extend the time . . . on motion made after the time has expired if the party failed to act 9 because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). The Ninth Circuit has held that, 10 for purposes of Rule 6(b), “excusable neglect” is appropriately analyzed under the standard 11 set forth in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 12 U.S. 380 (1993). See Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) 13 (citing Comm. for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 825 n.4 (9th Cir. 1996)) 14 (“[T]his court [has] held that the Supreme Court’s analysis of ‘excusable’ neglect in 15 Pioneer is applicable to Rule 6(b) . . . .”). Under Pioneer, a “determination of whether 16 neglect is excusable is an equitable one that depends on at least four factors: (1) the danger 17 of prejudice to the opposing party; (2) the length of the delay and its potential impact on 18 the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good 19 faith.” Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000) (citing 20 Pioneer, 507 U.S. at 395). 21 Applying the Pioneer factors here, the Court finds Defendant demonstrated 22 excusable neglect. Although the case was initiated about a year and a half ago, the one-day 23 delay is short and will have little impact on the proceedings, which are still in its early 24 stages such that discovery has not yet begun. Plaintiff argues that he “will be prejudiced by 25 Defendant’s attempt to continually delay this litigation” but provides no evidence of 26 intentional delay. ECF No. 37 at 3. The cause of the delay appears to be an honest mistake, 27 and there is no indication that Defendant did not act in good faith. Although Plaintiff will 28 need to respond to Defendants’ motion to dismiss, the Court finds on balance that the 1 |}mistake was neglectful, but not intentional nor made in bad faith, and is therefore 2 ||excusable. See Pincay v. Andrews, 389 F.3d 853, 856, 860 (9th Cir. 2004) (en banc) 3 || (affirming a district court’s finding of excusable neglect after the district court applied the 4 || Pioneer factors when a calendaring error due to carelessness resulted in a notice of appeal 5 was filed thirty days late in a case that had been in litigation for more than fifteen 6 || years); Perez-Denison v. Kaiser Found. Health Plan of the Nw., 868 F. Supp. 2d 1065, 7 || 1079 (D. Or. 2012) (“Even when an actor knowingly misses a deadline but acts in good 8 || faith without any intention to prejudice the opposing party, manipulate the legal process, 9 || or interfere with judicial-making, the actor's delay is neglectful, but not intentional, and 10 may be excusable.” (internal quotation marks and citation omitted)). 11 Accordingly, the Court GRANTS Defendant’s Ex Parte Application and excuses its 12 || late filing. The Court EXTENDS the remaining briefing deadlines by one day as follows: 13 any opposition is due by August 28, 2026, and (2) any reply is due by September 4, 14 |/2026. Plaintiff's Ex Parte Motion to strike the motion to dismiss as untimely is DENIED 15 || as moot. 16 IT IS SO ORDERED. 17 Dated: August 10, 2026 NO 18 QF | 19 Honorable Linda Lopez 30 United States District Judge 21 22 23 24 25 26 27 28 3 ee