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I have been searching case law for the definition or standard of what rises to the level of "exceptional circumstances" relating to request for extension of time.  Can anybody help me out I found countless of case laws for different types of exceptional circumstances but not in the extension of time.  I would greatly appreciate any productive assistances by  citations, Thanks in advance. 

 

 

 

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4 minutes ago, ElleMD said:

Extension of time in what context? What court? What type of case? Facts matter.

 

To file a response to a motion In the Court of Appeals. It could be the 9th.  I'm really interested in the ''seminal'' case law regarding the extensions of time to respond to a motion.  In the alternative it would also be helpful to get the Black's law dictionary definition of meaning of ''exceptional circumstances''  I don't have access to BLD.

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I think you might be referring to Federal Rule of Appellate Procedure 4(a)(5).

which states as follows:

 

5) Motion for Extension of Time.

 

(A) The district court may extend the time to file a notice of appeal if:

 

(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and

(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.

 

(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.

 

(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later

Edited by MiddlePart
fixing messy formatting

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But possibly also you may be referring to Rules 26(b) and 27(a)(3) and 27(a)(4):

Whether Rule 26/27 or Rule 4, though, the term "exceptional circumstances" doesn't appear in the rule.

 

 

 

Rule 27. Motions.

 

(a) In General.

...

(3) Response.

(A) Time to file. Any party may file a response to a motion; Rule 27(a)(2) governs its contents. The response must be filed within 10 days after service of the motion unless the court shortens or extends the time. A motion authorized by Rules 8, 9, 18, or 41 may be granted before the 10-day period runs only if the court gives reasonable notice to the parties that it intends to act sooner.

(B) Request for Affirmative Relief. A response may include a motion for affirmative relief. The time to respond to the new motion, and to reply to that response, are governed by Rule 27(a)(3)(A) and (a)(4). The title of the response must alert the court to the request for relief.

(4) Reply to Response. Any reply to a response must be filed within 7 days after service of the response. A reply must not present matters that do not relate to the response.

 

Rule 26. Computing and Extending Time

...

(b) Extending Time. For good cause, the court may extend the time prescribed by these rules or by its order to perform any act, or may permit an act to be done after that time expires. But the court may not extend the time to file:

(1) a notice of appeal (except as authorized in Rule 4) or a petition for permission to appeal; or

(2) a notice of appeal from or a petition to enjoin, set aside, suspend, modify, enforce, or otherwise review an order of an administrative agency, board, commission, or officer of the United States, unless specifically authorized by law.

 

===============

 

 

 

 

 

Edited by MiddlePart
left out quotation marks

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1 hour ago, MiddlePart said:

I think you might be referring to Federal Rule of Appellate Procedure 4(a)(5).

which states as follows:

 

5) Motion for Extension of Time.

 

(A) The district court may extend the time to file a notice of appeal if:

 

(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and

(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.

 

(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.

 

(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later

 

For example Ninth Circuit rule 31-2.2 although the ninth circuit doesn't use the term ""exceptional circumstances'' Subparagraph (b) of rule 31-2-2(b) provides that: 

(6)
 
 
While other circuits use the phrase ''exceptional circumstances'' generally motions to extend time are judged under the exceptional circumstances standard.   In this case there is timeliness of the motion which must be filed 7 days before, in other Circuits its 5 days prior to the filing the motion, response or reply thereof. 
 
 
 

 

 

 

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51 minutes ago, MiddlePart said:

I think you might be referring to Federal Rule of Appellate Procedure 4(a)(5).

 

 

No. That rule relates to filing the notice of appeal. That is not what the OP is trying to do. The appeal has been filed and now the OP evidently wants to respond to a motion filed by the government in the appeal. Federal Rule of Appellate Procedure (FRAP) 27 governs that, along with any local rules on the subject. FRAP provides that generally the OP would have 10 days to respond. FRAP 27(a)(3)(A). The courts may grant an extension of that time for “exceptional circumstances."

 

Quote

“In the absence of exceptional circumstances, each party is responsible for knowing the pertinent procedural rules and principles and for taking such steps as are needed to protect its own interests.” Endicott Johnson Corp. v. Liberty Mutual Insurance Co., 116 F.3d 53, 57 (2d Cir.1997); see also Osterneck v. Ernst & Whinney, 489 U.S. 169, 179, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989); Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964) (per curiam); Rodick, 1 F.3d at 1347.

 

I don't have any federal cases that precisely define what exceptional circumstances means in this context. Nor does Black’s Law Dictionary provide a definition for the term. However, in at least some opinions regarding certain requests to extend time to file motions in district court the courts have indicated that the circumstance needs to be one that is outside the control of the moving party. 

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4 minutes ago, Tax_Counsel said:

 

No. That rule relates to filing the notice of appeal. That is not what the OP is trying to do. The appeal has been filed and now the OP evidently wants to respond to a motion filed by the government in the appeal. Federal Rule of Appellate Procedure (FRAP) 27 governs that, along with any local rules on the subject. FRAP provides that generally the OP would have 10 days to respond. FRAP 27(a)(3)(A). The courts may grant an extension of that time for “exceptional circumstances."

 

 

I don't have any federal cases that precisely define what exceptional circumstances means in this context. Nor does Black’s Law Dictionary provide a definition for the term. However, in at least some opinions regarding certain requests to extend time to file motions in district court the courts have indicated that the circumstance needs to be one that is outside the control of the moving party. 

 

Exactly, Rule 6 governs NTA's.    Thanks' I have extensively read and understood the ''gist'' of the meaning of the phrase ''exceptional circumstance'' to mean.. But I know I cannot just recite what I know it means. There is a world of difference between knowing the principals and citing to supporting case law evidencing the moving parties request falls short of the exception of exceptional circumstances.     

 

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 I have a simple  question regarding the failure to file a response or a dispositve motion.  May the other party file a notice that the other party failed to respond and file its own dispositive motion? or is that inappropriate   

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3 hours ago, foolish said:

 I have a simple  question regarding the failure to file a response or a dispositve motion.  May the other party file a notice that the other party failed to respond and file its own dispositive motion? or is that inappropriate   

 

There is no need to file a follow-up to your motion pointing out that the other party failed to respond. When no reply is filed the court will see that because there won't be any reply in the record. So that would not be appropriate. As for you filing a dispositive motion, whether that is appropriate depends on the exact facts and what kind of motion it is that you wish to file. 

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1 hour ago, Tax_Counsel said:

 

There is no need to file a follow-up to your motion pointing out that the other party failed to respond. When no reply is filed the court will see that because there won't be any reply in the record. So that would not be appropriate. As for you filing a dispositive motion, whether that is appropriate depends on the exact facts and what kind of motion it is that you wish to file. 

 Thanks its been filed, the time to respond expired.  About not being appropriate, I had to move fast, basically I filed a notice and follow-up motion readdressing only the core ''nucleolus''' issue.   

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 The type of dispositive motion that was filed was for summary reversal mine was the only motion  that was filed before the time to file  expired.  Let me know if I am correct two things that I should expect (1) for it be granted, or: (2) briefing schedule.  I am more inclined in believing to be expect the latter rather the former. If so, what is the average that one generally waits for the court to issue a briefing schedule and would it describe the issues the court wishes being briefed?    

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1 hour ago, foolish said:

 The type of dispositive motion that was filed was for summary reversal mine was the only motion  that was filed before the time to file  expired.  Let me know if I am correct two things that I should expect (1) for it be granted, or: (2) briefing schedule.  I am more inclined in believing to be expect the latter rather the former.

 

Or the court may simply deny your motion without hearing or further briefs. On what basis do you think you are entitled to summary reversal of the trial court's decision? 

 

As for how long one might wait for a briefing schedule, that depends very much on the court in which the appeal is being heard. It varies by circuit. Whether the court will ask for a specific issue to be briefed or just ask for briefs on the motion is up to the judges on the panel. 

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4 minutes ago, Tax_Counsel said:

 

Or the court may simply deny your motion without hearing or further briefs. On what basis do you think you are entitled to summary reversal of the trial court's decision? 

 

As for how long one might wait for a briefing schedule, that depends very much on the court in which the appeal is being heard. It varies by circuit. Whether the court will ask for a specific issue to be briefed or just ask for briefs on the motion is up to the judges on the panel. 

 

I believe that I am entitled to reversal because my original FOIA case that has been relied on was short-circuited before agency ever filed their declaration and motion for summary judgment.  That if not for me being indigent they would have otherwise sustained their action. . .    

 

 

 

 

 

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23 minutes ago, foolish said:

 

I believe that I am entitled to reversal because my original FOIA case that has been relied on was short-circuited before agency ever filed their declaration and motion for summary judgment.  That if not for me being indigent they would have otherwise sustained their action. . .    

 

Did the trial court this time around dismiss the complaint based on res judicata? Or did the trial court dismiss it because of failure to state a claim? If it was the former and you are claiming that the prior case that was dismissed for failure to state a claim should not have been dismissed then I suspect the appeals court will simply deny your motion without hearing or further briefing. If you wanted to contest the dismissal for failure to state a claim in the prior case you needed to do that by direct appeal of that ruling in that case, not try to attack it later in second round of FOIA litigation that you bring. Once that decision became final, even if you think it was flawed, it becomes a good decision on which to make a res judicata claim in a subsequent FOIA case seeking the same material. If I haven't got it right as to the basis of the motion you filed then if you want to clarify that I might have further comment. 

 

You have been very much focused on the notion that you are entitled to have the agency respond to your complaint. But as I said before, you first have to get a good complaint filed with the court before the court will expect the defendant to answer and provide you with what you are looking for. Whether you are indigent or not, if your claim fails to state a good claim the court may dismiss it prior to an answer being filed. But as you did proceed in forma pauperis, 28 U.S.C. § 1915(e)(2) expressly states that the court shall dismiss the complaint whenever it determines the complaint fails to state a valid claim. In light of that, an argument that goes something like “the court should not have dismissed the case because without a motion to dismiss by the defendant I'm entitled to an answer from the defendant” will fail. The defendant did not have to file a motion to dismiss first. If upon reading the complaint the judge believed it failed to state a valid cause of action (and that it couldn't be cured by giving the defendant a shot at amending it), he/she had to dismiss it. No motion from the government was necessary before the court did that. 

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The doctrine was not brought up or argued this time, however the last time around the district court did address the res judicata issue in my favor, since although the claims were identical, they were not. In this case the only party responsible and has all the answers is properly before the court, the prior case was the referral problem that released them from being properly included in the complaint.    In this case my problem is that 28 U.S.C 1915(e)(2) directly conflicted with 552(a)(4)B) in the type of review that I received.  In I believe that I fall within that narrow exception, requiring a second look to prevent a manifest injustice from occurring when its evident from the record..          

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