Opinion
1:21-00197-CRK
12-08-2021
DAVID HARPER, Plaintiff, v. UNITED STATES DEPARTMENT OF THE INTERIOR ET AL., Defendants.
ORDER RE: DEFENDANTS' MOTION FOR EXTENSION OF TIME TO ANSWER PLAINTIFF'S COMPLAINT
Claire R. Kelly, Judge
MEMORANDUM AND ORDER
Before the Court is defendants Michael Nedd's and Kevin Graham's (“Defendants”) Motion for Extension of Time to Answer Plaintiff's Complaint, Dec. 7, 2021, ECF No. 30 (“Defs.' Mot.”). Defendants' answers are currently due on December 9, 2021. See Order Re: Stipulation to Extend Deadline for Defendants' Answer, Nov. 24, 2021, ECF No. 28. Defendants ask for an extension of their time to answer while the Solicitor General considers whether to authorize the filing of an interlocutory appeal of the Court's rejection of Defendants' claims of qualified immunity in the Court's decision denying Defendants' motion to dismiss. Defs.' Mot. ¶ 8; see also Opinion and Order Re: Motion to Dismiss, 27-30, Nov. 12, 2021, ECF No. 26 (“Order”). Plaintiff responds that he has already consented to one extension and an extension until January 11, 2022 would effectively constitute a stay. See Pl.'s Objection to Defs.' Mot. for Extension of Time to Ans. Pl.'s Compl., ¶ 4, Dec. 7, 2021, ECF No. 31. Plaintiff further argues that an extension would be unfair to Plaintiff and at this point is unnecessary as all that is required is the filing of an answer. Id. ¶¶ 5-7.
Whether to grant an extension of time to answer rests in the sound discretion of the trial court. Dist. Idaho Loc. Civ. R. 6.1(a). Defendants explain that an order denying a motion to dismiss asserting qualified immunity is immediately appealable to the extent that it turns on an issue of law, see Def.'s Mot. ¶ 5, and the Rules of Appellate procedure allow 60 days to file such an appeal, see Fed. R. App. R. 4(1)(B)(iv). However, the Defendants offer no explanation as to why they cannot file an answer while the Solicitor General contemplates whether to authorize an appeal of the Court's denial of the motion to dismiss and fail to explain the connection between filing an answer and the Solicitor General's contemplation of that decision. Furthermore, it is unclear to the Court why Defendants waited until this point to notify the Court of their intention to seek authorization of an appeal of the Court's decision when there has already been one extension of their time to file an answer. See Order re: Stipulation to Extend Deadline for Defendants' Answer, Nov. 24, 2021, ECF No. 28.
Although Defendants cite no authority in support of their request and fail to explain the connection between potentially filing a notice of appeal and their time to file an answer, if the Solicitor General authorizes the filing of an interlocutory appeal of the qualified immunity issue and such an appeal is filed, this Court would be divested of jurisdiction over the issues involved in the appeal while the appeal is pending. Chuman v. Wright, 960 F.2d 104, 104-05 (9th Cir. 1992); David v. Betts, Civ. No. 20-00002, 2021 WL 2355391 at *4 (D. Haw. June 9, 2021). However, an appeal of the Court's decision that Defendants are not entitled to dismiss Plaintiff's Bivens claim on the grounds of qualified immunity would not operate to automatically stay Plaintiff's defamation claims. Id. Moreover, Defendants do not provide the Court with anything more than speculation that they may file an appeal if the Solicitor General authorizes one.
Therefore, the Court sees no reason to grant the extension as requested; however, given that the answer is currently due tomorrow, in order to give the Defendants sufficient time to file their answer, the Court grants an extension until Wednesday, December 15, 2021.
Upon due deliberation and pursuant to Idaho District Local Rule 6.1, it is
ORDERED that Defendants' motion for an extension of time is granted in part and denied in part; and it is further
ORDERED that Defendants shall file their answer on or before Wednesday December 15, 2021.