United States District Court, D. New Mexico
ORDER DENYING MOTION TO RESCIND EXTENSION &
REJECT DEFENDANT'S RESPONSE
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Plaintiff's Motion (doc.
162) for the Court to rescind its Order granting Defendants
an extension of time to file a response (doc. 158) and to
decline to accept Defendants' filed response (doc. 160)
for failing to comply with the Federal Rules of Civil
25, 2018, Plaintiff filed a Motion to Impose Civil Contempt
Sanctions against Defendants (doc. 154) for failure to comply
with the Court's February 12, 2018 Order requiring
Defendants to continue to follow the postage plan adopted by
the Court in 2011 (doc. 153). On August 1, 2018, the Court
ordered Defendants to respond to Plaintiff's Motion by
August 14, 2018. Doc. 155. Defendants failed to do so.
However, on August 23, 2018, Defendants filed a Motion for
Extension of Time to Respond to the August 1 Order (doc.
157), which the Court granted retroactively on the following
day (doc. 158). Plaintiff subsequently filed a Motion for
Judgment on August 29, 2018, on the grounds that Defendants
had failed to reply by the initial August 14 deadline. Doc.
159. The Court denied Plaintiff's Motion for Judgment as
moot on September 11, 2018 (doc. 161), because Defendants had
timely filed their Response by the amended September 4
deadline. Plaintiff filed the instant Motion on September 21,
alleges that Defendants filed two docket items without
service on Plaintiff: (1) Motion for Extension of Time to
Respond to the August 1 Order (doc. 157) and (2) Response to
August 1, 2018 Order to Respond (doc. 160). Plaintiff argues
that, had he known of Defendants' Motion for Extension,
he would have objected to it and was therefore prejudiced by
their failure to serve. Doc. 162 at 1. He further argues that
he has been unable to file a Reply in the matter of his
Motion for Sanctions (doc. 154) because he was not served
with Defendants' Response. Id. at 2. Because the
Federal Rules of Civil Procedure (“FRCP”) require
Defendants to serve all filings on Plaintiff, Plaintiff
requests that the Court reject both filings by Defendants and
grant Plaintiff's Motion for Sanctions. Id.
are indeed required, under Rule 5 of the FRCP, to serve all
written motions on Plaintiff. See Fed. R. Civ. P.
5(a)(D). The service requirement of Rule 5 is satisfied by
mailing the document to the person's last known
address. Fed.R.Civ.P. 5(b)(2)(C). Service is
“complete upon mailing.” Id. Defendants
contend in their Response to the present Motion that both
documents at issue were served on Plaintiff via U.S. Mail.
Doc. 164 at 1 (“Defendants duly served their August 23,
2018 motion pleadings (Docs. 156, 157) on Plaintiff by first
class U.S. Mail.”) (“Defendants duly served their
September 4, 2018 Response (Doc. 160) on Plaintiff by first
class U.S. Mail.”). Certificates of service by first
class mail to Plaintiff's listed address are also
attached to both the Motion for Extension of Time (doc. 157
at 3) and the Response to August 1, 2018 Order to Respond
(doc. 160 at 15). Because service is complete upon mailing,
not receipt, whether Plaintiff actually received the
documents is not dispositive.
Defendants filed a Certificate of Second Service for
Pleadings Originally Served August 23, 2018 and September 4,
2018, in which they certify that they mailed second copies of
the relevant Motion and Response to Plaintiff by first class
U.S. Mail on October 3, 2018. Doc. 165. These copies were
“mailed according to more- secure measures recently
implemented” by NMCD, with the “reasonabl[e]
belie[f]” that Plaintiff would in fact receive them.
Id. at 2.
short, there is no evidence that Defendants failed to serve
Plaintiff with the relevant Motion and Response according to
the requirements of Rule 5. Moreover, Defendants have taken
additional steps to ensure that Plaintiff receives the filed
documents. In any event, Plaintiff has not been prejudiced by
the delay in receiving the filings. Defendants' Motion
for Extension of Time (doc. 157) was granted by Minute Order
(doc. 158) one day after filing of the Motion, before the
time for Plaintiff to respond had expired. This indicates
that the Court would have granted the extension regardless of
Plaintiff's filed objection. Granting of the extension
was permissible under Federal Rule 6(b)(1)(B) upon a finding
of excusable neglect. Fed.R.Civ.P. 6(b)(1)(B). Defendants
described sufficient grounds for such a finding in their
Motion for Extension of Time, explaining that Marna Trammell,
Defendants' attorney of record, left the NMCD Office of
General Counsel prior to the Court's Order to Respond,
and no one in the Office of General Counsel was aware of
subsequent CM/ECF notifications because they continued to be
sent to Ms. Trammell's email address. Doc. 157 at 1.
Based on these reasonable grounds, the Court would have
granted the extension regardless of Plaintiff's filed
Defendants' Response to August 1, 2018 Order to Respond
(doc. 160), Defendants stipulated and agreed to an extension
until October 18, 2018 for Plaintiff to file his Reply with
respect to his Motion for Sanctions. Doc. 164 at 2; doc. 165
at 2. Defendants further indicated that they were
“amenable to any request for a reasonable further
extension of time, if made by Plaintiff.” Doc. 165 at
3. Plaintiff has therefore received ample opportunity to file
a Reply, if desired.
foregoing reasons, Plaintiffs Motion to rescind granting of
the extension and reject Defendants' Response (doc. 162)
is hereby DENIED.
 While the Local Rules provide that
electronic filing generally “constitutes service for
purposes of Fed.R.Civ.P. 5, ” Plaintiff is proceeding
pro se and, as such, is excused from mandatory
e-filing. D.N.M.LR-Civ. 5.1(a). For “parties excused
from electronic filing by…these rules, ” such as