Answering Brief - Civil Rights Appeal

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Appeal No. 07-17369 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Appeal from the United States District Court for the District of Nevada Hon. Larry R. Hicks No. 3:05-cv-00121-LRH-VPC _________________________________________________________________ HIAWATHA HOEFT-ROSS; et al., Plaintiffs/Appellees vs. WERNER HOEFT, Trustee of the Hoeft Revocable Trust; et al., Defendants/Appellees

ANSWERING BRIEF

Michael R. Kealy, Esq., Bar No. 971 Parsons Behle & Latimer 50 West Liberty Street, Suite 750 Reno, Nevada 89501 Telephone: (775) 323-1601 Facsimile: (775) 348-7250 Attorneys for Appellees Werner Hoeft, Trustee of the Hoeft Revocable Trust

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CORPORATE DISCLOSURE STATEMENT The Appellees are not associated with any corporate entity that Fed. R. App. P. 26.1 requires Appellees to disclose.

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TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ........................................................i TABLE OF CONTENTS .......................................................................................ii TABLE OF AUTHORITIES .................................................................................iv STATEMENT OF JURISDICTION.....................................................................vii I. STATEMENT OF RELEVANT FACTS ............................................................1 II. SUMMARY OF THE ARGUMENT .................................................................5 III. ARGUMENT ...................................................................................................6 A. The District Court Properly Granted Summary Judgment on Hoeft-Ross’ 42 U.S.C. §§ 1981 and 1982 Claims Because Hoeft-Ross has Failed to Offer Any Evidence Regarding Whether He was Qualified to Rent the Property, or that the Property was Available to the Public .............................................................6 1.

Summary Judgment Standard of Review .................................................8

2. The Record Lacks Any Evidence that Hiawatha was Qualified to Rent the Property .....................................................................................................9 3. The Record Lacks Any Evidence Rebutting the Fact that the Property was Never Available to the Public .................................................................10 B. The District Court Properly Sanctioned Hoeft-Ross for Their Failure to Adhere to the Rules of Civil Procedure and Their Failure to Attend a Scheduling Conference that Was Necessitated by Their Delay ............................................12 1.

Standard of Review of Discovery Orders ..............................................15

2. The Magistrate Judge’s Order was Appropriate Under the Inherent Power of the Court....................................................................................................15 3. The District Court’s Sanction Does Not Amount to A Dispositive Order .............................................................................................................17 C. The District Court Properly Determined that Mr. Hiawatha Did Not Demonstrate Excusable Neglect for Failing to Appear at the January 18, 2007 Case Management Conference ..........................................................................20 1.

Standard of Review ...............................................................................20

2. The District Court was Apprised of All Relevant Facts When It Sanctioned Hoeft-Ross for Failing to Attend the Scheduling Conference and for Failing to Conduct an Initial Case Conference..........................................21

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3. Three Out of the Four Appellants Have Not Alleged Any Excusable Neglect ..........................................................................................................26 4. In the Unlikely Event That This Court Determines that the Application of the Briones Test is Appropriate, the Record Demonstrates that Hoeft-Ross’ Disregard of the Federal Rules of Civil Procedure was Not Excusable ..........28 IV. CONCLUSION ..............................................................................................31 CERTIFICATE OF COMPLIANCE ....................................................................32 STATEMENT OF RELATED CASES ................................................................32

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TABLE OF AUTHORITIES CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .................................. 8 Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir. 1997) ........................................................................................ 20, 28, 29, 31 Byrd v. Environmental Protection Agency, 174 F.3d 239 (9th Cir. 1999) ..................................................................................................... 19 Campbell Industrial V. M/V Gemini, 619 F.2d 24 (9th Cir. 1980)............... 15 Celotex Corp. v. Catrett, 477 U.S. 317(1986)............................................... 8 Chambers v. NASCO, Inc. 501 U.S. 32 (1991) ........................................... 16 Dahl v. City of Huntington Beach, 84 F.3d 363 (1991) ............................... 15 Eastman Kodak Co. v. Image Tech. Services, Inc., 504 U.S. 451 (1992)...................................................................................................... 8 Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1991)............................................. 21 Freeland v. Amigo, 103 F.3d 1271 (6th Cir. 1997) ..................................... 18 Graham v. Mukasey, 2009 WL 902302 ...................................................... 19 Grimes v. City and County of San Francisco, 951 F.2d 236 (9th Cir. 1991) ..................................................................................................... 15 H.L. Hayden Co. of N.Y., Inc. v. Siemens Medical System, Inc., 879 F.2d 1005 (2d Cir. 1989) ......................................................................... 8 Hutchinson v. Pfeil, 105 F.3d 562 (10th Cir. 1997)..................................... 17 Leffler v. Meer, 60 F.3d 369 (7tt Cir. 1995) ................................................ 15

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Lew v. Kona Hospital, 754 F.2d 1420 (9th Cir. 1985)................................. 15 Maisonville v. F2 America, Inc., 902 F.2d 746 (9th Cir. 1990) ............. 17, 19 Malone v. United States Postal Services, 833 F.2d 128 (9th Cir. 1987) ........ 6 Merritt v. International Bro. of Boilermakers, 649 F.2d 1013 (5th Cir. 1981) ..................................................................................................... 17 Ocelot Oil Corp. v. Sparrow Industrial, 847 F.2d 1458 (10th Cir. 1988) ............................................................................................... 17, 18 Palgut v. City of Colorado Springs, 2009 WL 539723, 2............................ 17 Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, (1993) .................................................................................... 28 Selden Apartments v. United States Department Of HUD, 785 F.2d 152 (6th Cir. 1986) ........................................................................ 7, 9, 10 Unigard Security Insurance Co. v. Lakewood Engineering & Manufacturing Corp., 982 F.2d 363 (9th Cir. 1992) .............................. 15 U.S. v. Carlson, 900 F.2d 1346 (9th Cir. 1990)........................................... 19 Ware v. Rodale Press, Inc., 322 F.3d 218 (3rd Cir. 2003)........................... 18 Weeks v. Samsung Heavy Industrial Co., Ltd., 126 F.3d 926 (7th Cir. 1997) ..................................................................................................... 15 Zimmerman v. Shakman, 62 P.3d 976 (Ariz. Ct. App. 2003) ...................... 18 RULES AND STATUTES 28 U.S.C. 636 ......................................................................... 16, 17, 19, 20 Fed. R. Civ. P. 26 ...........................2, 3, 13, 14, 16, 17, 21, 22, 23, 24, 26, 27 Fed. R. Civ. P. 56 ................................................................................. 7, 8, 9 4824-6487-4755.1

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Fed. R. Civ. P. 60 ................................................................................. 21, 28 Fed. R. Civ. P. 72 ....................................................................................... 17 42 U.S.C. §§ 1981 and 1982 ..................................................5, 6, 7, 9, 10, 12

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STATEMENT OF JURISDICTION The Appellees do not dispute the Appellants’ Statement of Jurisdiction. However, the Appellees note that the District Court ultimately declined to exercise supplemental jurisdiction under 28 U.S.C. § 1367.

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I. STATEMENT OF RELEVANT FACTS The Dwelling Werner and Christel Hoeft are the parents of Monica Hoeft-Ross, in-laws to Hiawatha Hoeft-Ross, and grandparents to Kirsten Hoeft-Ross and Martin HoeftRoss (collectively “Hoeft-Ross”). (Supplemental Excerpts of Record “SER” 22:811.) Werner and Christel Hoeft purchased a dwelling located at 4569 Pennant Court, Sparks, Nevada, (the “property”) for the sole purpose of providing and subsidizing an affordable house for the Hoeft-Ross family. (SER 22:15-16, 35:1015; 109:5-7.) Werner and Christel Hoeft bought this dwelling as joint tenants in August of 2001. (SER 31:4-5.) Werner and Christel Hoeft created the Hoeft Revocable Trust in July 2002, and at that time transferred the title to the Sparks rental into said trust. 1 (SER 31:4-8.) Hoeft-Ross resided in the property from September of 2001 until December of 2004. (SER 33:9-15.) After Hoeft-Ross was evicted for nonpayment of the nominal monthly rent of $500, the property was sold by the Hoefts without ever being rented to any other person. (SER 31:9-10, 33:13-15, 57.)

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Werner and Christel Hoeft, individually and as trustees of the Hoeft Revocable Trust are collectively referred to herein as the “Hoefts.” 4824-6487-4755.1

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The Hoeft-Ross Failure to Substantively Conduct Discovery The Complaint was filed in March of 2005, and the First Amended Complaint was filed in June of 2005. (SER 120.) The First Amended Complaint consists of more than forty pages, over three hundred numbered paragraphs, and thirty-five causes of action.

(SER 99:15-28.)

The Hoefts filed a Motion to

Dismiss in response to the First Amended Complaint, and Hoeft-Ross sought extensions of time in which to oppose the Hoefts’ Motion to Dismiss. (SER 121.) Although the Motion to Dismiss was fully briefed on December 20, 2005, HoeftRoss filed additional papers consisting of an Errata and a Motion to Strike various parts of the Hoefts’ pleading papers. (SER 122.) The Hoefts’ Motion to Dismiss was granted in part, and denied in part on June 6, 2006, and the Hoefts promptly filed their Answer. (SER 98-107, 122.) On July 6, 2006, counsel for the Hoefts wrote to Hoeft-Ross and explained the need for a meet and confer as well as for compliance with Rule 26 of the Federal Rules of Civil Procedure. (SER 42.) The July 6, 2006 correspondence triggered an exchange of letters in an effort to coordinate dates for the meet and confer pursuant to Fed. R. Civ. P. 26. (SER 43-73.) Hoeft-Ross demanded that all communications be in writing, and offered only a post office box address. (SER 51-54.) Counsel for the Hoefts wrote no fewer than six letters between July 6, 2006 and September 8, 2006 in attempts to solicit, discern and coordinate a date

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acceptable to Hoeft-Ross, who were not accessible by telephone. (SER 42, 48, 51, 52-53, 56, 61, and 72-73.) The collective trail of correspondence is included in the Supplemental Excerpts of the Record so that this Court may consider the content, tone and timing of the communications. (SER 42-73.) In particular, the Hoefts direct the Court’s attention to the September 8, 2006 letter to demonstrate the difficulties encountered by the Hoefts in scheduling a meet and confer, where Hoeft-Ross would repeatedly cancel dates, including dates offered by Hoeft-Ross, and then fail to offer new dates for a conference. (SER 72-73.) On July 27, 2006, Hoeft-Ross mailed to Hoefts’ counsel a Plaintiffs’ Witness and Document List, which included only two pages of documents consisting of the two-sided monthly rental agreement at issue, and a one-page letter dated October 15, 2004. These two documents had previously been attached as exhibits (“T” and “K” respectively) to Plaintiffs’ Reply to Defendants’ Motion to Dismiss First Amended Complaint, filed eight months earlier on November 28, 2005.

(SER 116-118.)

The witnesses identified included only the Plaintiffs

themselves, and a Ms. Laura Link, who had already filed declarations with the Court. (SER 108-109.) Thus, the dearth discovery productions by Hoeft-Ross under Rule 26(a)(1) consisted of (1) a list of the Plaintiffs themselves plus one witness already identified to the Hoefts, and (2) two pieces of paper already provided to and possessed by the Hoefts. (E.R. 9-14.)

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Hoeft-Ross proposed a Discovery Plan and Scheduling Order on July 27, 2006, with a discovery cut-off of December 19, 2006. (SER 47.) Having been unsuccessful in getting Hoeft-Ross to commit or appear for a meet and confer, the Hoefts mailed a List of Witnesses and Documents to Hoeft-Ross, together with over 150 pages of Bates-stamped documents, and a revised Discovery Plan and Scheduling Order on August 8, 2006. (SER 51, 74-76.) The need for special scheduling to accommodate Hoeft-Ross was included in the Hoefts’ revised Discovery Plan and Scheduling Order. (SER 95:2.) In addition, a copy of the Hoefts’ List of Witnesses and Documents, without copies of the Hoeft documents was provided to the District Court. (SER 74-77.) Counsel for Defendants then immediately spent two full work weeks in trial from August 14, through August 25, 2006, and subsequently filed Defendants’ Discovery Plan and Scheduling Order on September 9, 2006, after advising Hoeft-Ross of the intent to do so. (SER 40:24-27, 61, 93.) The District Court, through the Magistrate, scheduled and rescheduled a case management conference to accommodate the needs of Hoeft-Ross. (SER 4-5.) On January 18, 2007, Monica Hoeft-Ross, Hiawatha Hoeft-Ross, Kirsten Hoeft-Ross, and Martin Hoeft-Ross all failed to attend the case management conference. (E.R. 28.) Although both the Court and Hoefts’ counsel waited for a period of time to allow Hoeft-Ross to show up late, no appearance was made by Hoeft-Ross. (E.R.

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28.) Given Hoeft-Ross’ failure to substantively comply with Rule 26(a), and their unexplained absence from the hearing scheduled for their benefit, the Magistrate ruled that Hoeft-Ross would not be entitled to further discovery. (SER 2.) II. SUMMARY OF THE ARGUMENT In this case, the District Court granted summary judgment in favor of Werner and Christel Hoeft upon Hiawatha’s 42 U.S.C. §§ 1981 and 1982 claims because “Hiawatha ha[d] not submitted any evidence indicating that he was qualified to rent the property,” and because “there is no evidence that the property remained available after Defendants allegedly refused to enter into a contract with Hiawatha.” (E.R. 16:24-25, 17:22-23.) It is incumbent upon Hoeft-Ross in this appeal to identify evidence in the record which can present genuine issues of material fact on these two factors. However, Hoeft-Ross has failed in this duty because there is a complete failure of proof with respect to whether Hiawatha Hoeft-Ross was qualified to rent the property, and to refute the sworn statements of the Hoefts that the property was never available to the public. Although Hoeft-Ross makes much of the Magistrate’s Order precluding any further discovery in the case—years after the case was filed, the issue of the discovery sanction is moot because Hoeft-Ross’ 42 U.S.C. §§ 1981 and 1982

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claims were proper for summary disposition, and because Hoeft-Ross failed to establish the requisite prima facie case under both statutes. The Magistrate’s April 10, 2007 Order precluding further discovery was not a dispositive order. (E.R. 27-29.) Hoeft-Ross was not precluded from presenting any witness or evidence whatsoever.

(E.R. 27-29.)

Thus, the District Court

properly declined to apply the “dispositive sanction test” set forth in Malone v. United States Postal Services, 833 F.2d 128 (9th Cir. 1987). The Magistrate’s ruling precluding further discovery as of April 10, 2007 was appropriate because of Hoeft-Ross’ failure to (1) submit to the Court or agree to a discovery plan and scheduling order, (2) exchange any documents with the Hoefts beyond the two pages already contained within the pleadings and papers before the Court, and (3) attend a scheduling conference that was necessitated by Hoeft-Ross’ delay and discovery abuses. III. ARGUMENT A.

The District Court Properly Granted Summary Judgment on Hoeft-Ross’ 42 U.S.C. §§ 1981 and 1982 Claims Because HoeftRoss has Failed to Offer Any Evidence Regarding Whether He was Qualified to Rent the Property, or that the Property was Available to the Public

Because the District Court’s determination that Hoeft-Ross failed to establish a prima facie case under 42 U.S.C. §§ 1981 and 1982 renders all other

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issues in this appeal moot, the Hoefts will initially address the Hoeft-Ross’ arguments regarding the 42 U.S.C. §§ 1981 and 1982 claims. To establish a prima facie case under 42 U.S.C. §§ 1981 and 1982, a plaintiff must establish that (1) he “is a member of a racial minority;” (2) he “applied for and was qualified to rent or purchase certain property or housing;” (3) rejection of the application; and (4) that the “rental property remained available thereafter.” Selden Apartments v. United States Dept. of HUD, 785 F.2d 152 (6th Cir. 1986). A prima facie case is not present because the record is unburdened by any evidence, despite the requirements of Fed. R. Civ. P. 56(e), that could establish the second and fourth factors listed above. The District Court noted the absence of any evidence in the record establishing that (1) Hiawatha Hoeft-Ross was qualified to rent the property or (2) the property was ever “available” to the public, let alone remained available to the public after the Hoefts allegedly refused to enter into a contract with Hiawatha Hoeft-Ross. (E.R. 16-18.) In fact, Hiawatha Hoeft-Ross admitted that the property was purchased for the sole purpose of housing the Hoeft-Ross family. 2 (SER 22:15-16.)

This admission corroborates the sworn affidavit of Christel Hoeft,

conclusively establishing that the property was never available to the general public at any time. (SER 112:5-7.) 2

Hiawatha Hoeft-Ross admitted that “[the] dwelling was specifically purchased for the Plaintiffs to live in . . . .” (SER 22:15-16.) 4824-6487-4755.1

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Summary Judgment Standard of Review

Summary Judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). It is well established that, “[o]ne of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

Although the substantive law controls which factual disputes are material, “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. The existence of a mere scintilla of evidence supporting the Hoeft-Ross’ position does not establish a genuine dispute because the record must contain evidence from which a jury could reasonably find for Hoeft-Ross. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Even when some evidence exists to be construed, “only reasonable inferences can be drawn from the evidence in favor of the non-moving party.” Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 469 n. 14 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (quoting H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1012 (2d Cir. 1989)). “If the [non-moving party’s] theory is . . . senseless, no reasonable jury could find in its favor, and summary judgment should be granted.” Id. at 468-69.

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The Record Lacks Any Evidence that Hiawatha was Qualified to Rent the Property

The second of four factors required to determine whether a prima facie case exists under 42 U.S.C. §§ 1981 and 1982 is whether an applicant “applied for and was qualified to rent or purchase certain property or housing.” Selden Apartments, 785 F. 2d at 159. With respect to this issue, the District Court determined that “Hiawatha [had] not submitted any evidence indicating that he was qualified to rent the property.” (E.R. 16:24-25.) Additionally, the District Court went on to state that “[i]n fact, [the Hoefts] are correct that the record before the court is silent as to this issue.” (E.R. 16-17.) In an effort to respond to the District Court’s finding of a complete lack of proof, Hiawatha Hoeft-Ross argues that because his wife Monica was allowed to rent the property, and because she is now claimed to lack income and to be dependent on Hiawatha, such is the equivalent of competent evidence that he was qualified to rent the property. (Appellants Opening Brief “AOB” 40.) This conclusory contention is not sufficient to establish a prima facie case. Simply put, there is no competent evidence in the record establishing that Monica and Hiawatha are similarly situated financially, or that either of them were financially “qualified” to rent the property. Rule 56(e)(2) of the Federal Rules of Civil Procedure provides, in pertinent part, that “an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must—by 4824-6487-4755.1

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affidavits or as otherwise provided by this rule—set out specific facts showing a genuine issue for trial.” As a substitute for setting forth “specific facts,” Hiawatha Hoeft-Ross refers to his own “STATEMENT OF UNCONTESTED FACTS,” but does not reference any affidavit or declaration to support his position. (AOB 40.)3 Hoeft-Ross’ failure to come forth with any competent evidence regarding Hiawatha’s and/or Monica’s respective financial position highlights the fact that the record is silent with respect to Hiawatha’s financial qualifications to rent the property. Thus, the District Court summarily disposed of Hiawatha Hoeft-Ross’ claims under 42 U.S.C. §§ 1981 and 1982. 3.

The Record Lacks Any Evidence Rebutting the Fact that the Property was Never Available to the Public

The fourth factor necessary for a prima facie case to exist under 42 U.S.C. §§ 1981 and 1982 is whether the “rental property remained available” after a qualified minority applicant’s application was denied. Selden Apartments, 785 F.2d at 159. With respect to this issue, the District Court determined that “there is no evidence that the property remained available after the [Hoefts] allegedly refused to enter into a contract with [Mr. Hiawatha].” (E.R. 17-18.) In the face of the District Court’s finding of a complete lack of proof, Hiawatha Hoeft-Ross now

3

Hiawatha cites to E.R. 23 in an effort to support his position that Monica was financially dependent on Hiawatha, which is a “mere allegation” excerpt from Plaintiffs’ Motion in Opposition to Defendants’ Motion for Summary Judgment. (AOB 40.) 4824-6487-4755.1

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conjures that the property was “available” because the Hoefts rented the property to their daughter shortly after the Hoefts allegedly rejected Mr. Hoeft-Ross’ application. (AOB 41.) However, it is not contested in this case, and in fact has been admitted, that the Hoefts acquired a dwelling solely as a means of assisting their daughter and her family, and offering them, and only them, a 3-bedroom home in which to live for the nominal rental of $500 per month. (SER 22:15-16, 31:10-11, 109:5-7; E.R. II 13.) It is undisputed that this property was never rented or available to the general public or any other person. (SER 22:15-16, 31:10-11, 109:5-7.) Monica Hoeft-Ross is the daughter of the defendants, which obviates the Hoefts’ sworn statements as to why the dwelling was made available to, and only to, Monica Hoeft-Ross and her family. (SER 31:9-11.) The record also establishes that the property was never “available” from September 2001 through December 2004; it was admittedly leased by Monica Hoeft-Ross and occupied exclusively by Monica, Hiawatha, Martin and Kirsten Hoeft-Ross. (SER 31:9-11.) Although Mr. Hoeft-Ross alleges in the Amended Complaint various discriminatory acts in September of 2001, in March 2004, and vaguely at times in between, the HoeftRoss family was occupying the dwelling and continued to do so for the entire period, plus an additional nine months after March of 2004.

(SER 31-33.)

Consequently, there is no genuine issue of fact that the property was not “available” after the alleged rejection or refusal to contract. Therefore, the fourth

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element needed for a prima facie case under 42 U.S.C. §§ 1981 and 1982 is clearly missing. Ultimately, after more than three years and the sustained failure of HoeftRoss to pay even the nominal rent, the Hoefts evicted their estranged daughter and her family. (SER 33:12-15.) The property was then sold by the Hoefts. (SER 31:9-11.) Hoeft-Ross posits that the District Court’s ruling would set a precedent that “a landlord could not be held liable for racial discrimination so long as [a] landlord rents [a] unit to a non-racial minority shortly after he rejects a racial minority.” (AOB 41.) This general statement does not fit this case because (1) the Hoefts never made the property available to the general public, and (2) Mr. Hiawatha was permitted to occupy the residence for the entire time the property was ever rented, namely, from September 2001 through December 2004. (SER 31:9-11.) B.

The District Court Properly Sanctioned Hoeft-Ross for Their Failure to Adhere to the Rules of Civil Procedure and Their Failure to Attend a Scheduling Conference that Was Necessitated by Their Delay

The decision of the Magistrate regarding discovery approved by the District Court does not warrant overturning the grant of summary judgment. Magistrate Judge Valerie P. Cooke properly sanctioned Hoeft-Ross after all four Plaintiffs failed to attend a case management conference necessitated by Hoeft-Ross’ delays. On January 18, 2007, nearly two years after this case was commenced, Magistrate Judge Valerie P. Cooke conducted a case management conference. (SER 1.) This 4824-6487-4755.1

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case management conference was originally set for October 20, 2006, but postponed to January 18, 2007, because on September 25, 2007 Hoeft-Ross sought an extension of time for the conference. (SER 6-7.) This extension was sought after Hoeft-Ross failed to properly respond to and/or file a proposed scheduling order, and failed to participate in the mandatory Fed. R. Civ. P. 26(f) meeting, despite many sincere attempts by the Defendants to secure a mutually convenient date and time for said meeting. (SER 42-73.) Even though the District Court extended the date for the case management conference further than requested, the entire Hoeft-Ross family simply failed to show up for the case management conference on January 18, 2007. (SER 4-5.) The Magistrate Judge then entered her Order determining that the right to further conduct discovery had been forfeited by the Plaintiffs due to noncompliance, and had been waived by the Defendants. (SER 1-2.) Upon review of the Magistrate Judge’s April 10, 2007 Order, the District Court determined that the Order was not clearly erroneous or contrary to law. (E.R. 13:19-20.) In reaching this determination, the District Court found that:

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(1)

Mr. Hiawatha’s “various filing in this case demonstrate that he was capable of engaging in discovery;”

(2)

“To the extent that [Mr.] Hiawatha may have been advised by his doctor not to engage in litigation, the court notes that Hiawatha had the option of voluntarily dismissing the case;” 13

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(3)

The case had been pending for almost three years [at the time of the District Court’s decision];

(4)

The Magistrate Judge “is correct that Hiawatha failed to show excusable neglect for the failure to participate in discovery and proceed with this action; and

(5)

Mr. Hiawatha “has failed to show that Judge Cook’s order denying [Hoeft-Ross] the opportunity to engage in discovery as a sanction for their failure to comply with Local Rule 26-1 and Rule 26 of the Federal Rules of Civil Procedure was clearly erroneous or contrary to law.”

(E.R. 13-14.) On appeal, Hoeft-Ross argues that the sanction precluding discovery was a dispositive sanction that was not properly reviewed as such by the District Court, and that Hoeft-Ross’ failure to attend the scheduling conference merely amounted to excusable neglect. These contentions miss the mark because the Magistrate’s sanction did not preclude the introduction of any witnesses or evidence. (SER 12.) Nevertheless, Hoeft-Ross urges this Court to inappropriately apply a higher standard of review that pertains only to dispositive orders. Furthermore, the failure of all four appellants to comply with Local Rule 26-1 and Rule 26 of the Federal Rules of Civil Procedure, coupled with their absence at the scheduling conference, amounts to more than excusable neglect.

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Standard of Review of Discovery Orders

The District Courts possess extremely broad discretion with respect to discovery matters. Leffler v. Meer, 60 F.3d 369, 374 (7th Cir. 1995). A District Court’s Order affirming sanctions imposed by a Magistrate Judge is reviewed for abuse of discretion. Grimes v. City and County of San Francisco, 951 F.2d 236, 238 (9th Cir. 1991) (citing Lew v. Kona Hospital, 754 F.2d 1420, 1425 (9th Cir. 1985)). “Because the district court is in a far better position than we are to pass on discovery matters, we will reverse the district court’s exercise of discretion as to discovery matters only upon a showing of an abuse of that discretion.” Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997); see also Dahl v. City of Huntington Beach, 84 F.3d 363, 367 (9th Cir. 1996). Additionally, it is established that “[t]he district court shall defer to the magistrate’s orders unless they are clearly erroneous or contrary to law.” Grimes, 951 F.2d at 240. 2.

The Magistrate Judge’s Order was Appropriate Under the Inherent Power of the Court

The Ninth Circuit “has recognized as part of a district court’s inherent powers the ‘broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial.’” Unigard Security Ins. Co. v. Lakewood Engineering & Manufacturing Corp., 982 F.2d 363, 368 (9th Cir. 1992) (quoting Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980)). Moreover, “Courts are invested with inherent powers that are ‘governed not by rule or statute

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but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’” Id. (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). More specifically, a United States Magistrate has the authority to hear and determine any pretrial matter but for those excepted under 28 U.S.C 636(b)(1)(A). The matters determined by the Magistrate Judge in her April 10, 2007 Order were all non-dispositive matters falling within the proper authority of the Magistrate Judge under 28 U.S.C. 636(a), and not excepted under 28 U.S.C 636(b). In addition to the broad authority granted to the Magistrate by 28 U.S.C. 636, the consequent authority of the Magistrate to control discovery and limit same as a sanction is abundantly clear throughout the many subsections of Rule 26 of the Federal Rules of Civil Procedure. In particular, Fed. R. Civ. P. 26(d) states that “ . . . a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f). Furthermore, plaintiffs “ . . . must . . . confer to consider the nature and basis of their claims and defenses . . . and to develop a proposed discovery plan. . . .” Id. Rule 26(f) expansively dictates the level of participation and timing of the parties in conducting the initial discovery. Under L RIB 1-9, Magistrates may conduct pretrial conferences and related pretrial proceedings. The record is clear that Hoeft-Ross not only disregarded the most fundamental requirements of the rules governing discovery, but also disregarded

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the Magistrate’s Order to appear for a case management conference. Accordingly, the Magistrate’s determinations and Order are plainly supported by the record, and authorized by Rule 26(d) of the Federal Rules of Civil Procedure. 3.

The District Court’s Sanction Does Not Amount to A Dispositive Order

The Magistrate Judge’s sanction precluding further discovery was not dispositive because it did not dispose of any of Hoeft-Ross’ claims or defenses. Fed. R. Civ. P. 72(a) defines non-dispositive matters as those “pretrial matter [s] not dispositive of a party’s claim or defense.” In Maisonville v. F2 America, Inc., it was determined that the Ninth Circuit would follow other Circuits that “have noted that discovery sanctions not falling within the motions excepted in [28 U.S.C.] section 636(b)(1) are non-dispositive matters.” 902 F.2d 746, 748 (9th Cir. 1990) (citing Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1462 (10th Cir. 1988); Merritt v. International Bro. of Boilermakers, 649 F.2d 1013, 1016-17 (5th Cir. 1981)). Because the Magistrate’s sanction precluding further discovery does not fall within the motions excepted in section 636(b)(1), it is a non-dispositive discovery sanction. Generally speaking, discovery matters are non-dispositive, and it is well settled that “[a] magistrate judge has authority to order discovery sanctions for improper conduct during the discovery process.”

Palgut v. City of Colorado

Springs, 2009 WL 539723, 2 (D. Colo. 2009) (citing Hutchinson v. Pfeil, 105 F.3d 4824-6487-4755.1

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562, 565 (10th Cir. 1997) (“Discovery is a nondispositive matter, and magistrate judges have the authority to order discovery sanctions.” (citations omitted); Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1462 (10th Cir. 1988) (“Discovery is clearly a pretrial matter, and magistrates thus have general authority to order discovery sanctions.”). Hoeft-Ross argues that a sanction is case-dispositive if it prevents discovery. (AOB 16.) This assertion is unsupported by any case law or other legal authority. Hoeft-Ross offers the cases Zimmerman v. Shakman, 62 P.3d 976, 982 (Ariz. Ct. App. 2003), Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3rd Cir. 2003), and Freeland v. Amigo, 103 F.3d 1271, 1276 (6th Cir. 1997), for the proposition that a sanction precluding further discovery is dispositive. However, these cases stand for a much different proposition, namely, that a sanction which excludes evidence from trial that is necessary to establish a party’s claims is a dispositive sanction.

Such is not this case.

Hoeft-Ross ignores the material

distinction and asks this Court, without the benefit of any legal precedent, to casuistically deem a sanction precluding further discovery to be the equivalent of an order in limine preventing the admission—at trial—of key witnesses or relevant evidence. The pertinent case law in this jurisdiction precludes this quantum leap by clearly establishing that discovery sanctions not falling within the matters

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excepted in 28 U.S.C. § 636(b)(1) are non-dispositive. See Maisonville v. F2 America, Inc., 902 F.2d 746, 748 (9th Cir. 1990). Significantly, Hoeft-Ross never argued in the District Court that his ability to properly respond to the Hoefts’ Motion for Summary Judgment was impaired by the Order precluding further discovery. It is fundamental that “[t]he party seeking discovery bears the burden of identifying the facts to be discovered that would create genuine issues of material fact and the reasons why the party cannot acquire those facts without additional discovery.” Graham v. Mukasey, 2009 WL 902302, 2 (D.D. Cir. 2009) (citing Byrd v. Environmental Protection Agency, 174 F.3d 239, 248 n. 8 (D.C. Cir. 1999)). Hoeft-Ross ignored this burden in the District Court and never argued that more discovery was necessary to properly respond to the Motion for Summary Judgment. Rather, Hoeft-Ross’ Rule 56(f) argument is an afterthought, raised for the first time on this appeal.

As a general rule, unless a party is able to show

exceptional circumstances—which have not been demonstrated here—this Court will “not consider issues raised for the first time on appeal.” U.S. v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990). Moreover, this case was nearly two years old at the time the Magistrate entered the sanction precluding further discovery. (SER 12.) By that time, Hoeft-Ross had formally produced two pieces of paper as their entire initial document disclosures. (E.R. II 9-14.)

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Hoeft-Ross’ Opening Brief intimates that if Hoeft-Ross had been permitted to conduct further discovery, they might have been about to determine (1) if the Hoefts, or their trust, owned more real-estate that would subject them to the requirements set forth in the Fair Housing Act, (2) that the Hoefts had attempted to rent the property to the general public, and (3) what the requirements were to rent the property. (AOB 17-18.) This argument is also being raised for the first time on appeal and should be rejected. Hoeft-Ross’ belated suggestion is nothing more than mere conjecture regarding what additional discovery might possibly divulge. It further reveals that Hoeft-Ross lacked even the minimum factual foundation upon which to assert a claim based upon the Fair Housing Act, and speculated that something might surface through a fishing expedition. Accordingly, this Court should determine that the Magistrate Judge’s sanction precluding further discovery is not a dispositive sanction because it does not fall within the motions excepted in 28 U.S.C. § 636(b)(1), and because it was not dispositive of any of Hoeft-Ross’ claims or defenses. C.

The District Court Properly Determined that Mr. Hiawatha Did Not Demonstrate Excusable Neglect for Failing to Appear at the January 18, 2007 Case Management Conference 1.

Standard of Review

The District Court’s denial of a Rule 60(b) motion is reviewed for abuse of discretion. Briones v. Riviera Hotel & Casino, 116 F.3d 379, 380 (9th Cir. 1997).

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Moreover, “‘[a]n appeal from a denial of a Rule 60(b) motion brings up only the denial of the motion for review, not the merits of the underlying judgment.’” Id. (quoting Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991)). 2.

The District Court was Apprised of All Relevant Facts When It Sanctioned Hoeft-Ross for Failing to Attend the Scheduling Conference and for Failing to Conduct an Initial Case Conference

Fed. R. Civ. P. 60(b)(1) provides, in pertinent part, that “[o]n motion and just terms, the court may relieve a party or its legal representatives from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect.” Hoeft-Ross argues that “the District Court also erred when it denied Mr. and Mrs. Hoeft-Ross’s Rule 60(b)(1) motion and ruled that they had not shown excusable neglect for missing the January 18, 2007 case management conference.” It is clear from the record that the District Court was fully apprised of—and considered—all of the facts surrounding Hoeft-Ross’ discovery abuses. (E.R. 12-14.) The Court observed Hoeft-Ross’ filing of extensive motions before the District Court, while Hoeft-Ross simultaneously claimed impairment from a condition dating back to 1998 as an excuse for noncompliance with Fed. R. Civ. P. 26. (E.R. 13:20-23; SER 26:17-22.) Following Hoeft-Ross’ failure to attend the January 18, 2007 case management conference, the Magistrate Judge entered an Order on April 10, 2007 which found that: 4824-6487-4755.1

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[P]laintiffs have failed to show excusable neglect for their nearly seven-month failure to participate in discovery or proceed with this case. Despite claiming varying medical ailments and automobile accidents, plaintiffs were able to file a sixteen-page motion for sanctions against defense counsel which included 109 pages of exhibits. [(#52/53/54)] The Court finds that plaintiffs were able to participate in discovery and chose not to do so at their own peril. (E.R. 28.) (Citations omitted.) In response to this Order, Hoeft-Ross filed objections before the District Court. Upon review, the District Court recognized in a December 5, 2007 Order that the Magistrate Judge noted Hoeft-Ross’ refusal to participate in a Fed. R. Civ. P. 26(f) meeting from July, 2006, through September, 2006, despite the Hoefts’ continued attempts to conduct the meeting. (E.R. 12.) In addition, the December 5, 2007 Order acknowledged that as a result of Hoeft-Ross’ failure to attend the January 18, 2007 case conference, which was scheduled at Hoeft-Ross’ request, Hoeft-Ross “waived any right to request revisions or extensions as to the case management issues in this matter.” (E.R. 12-13.) Finally, the District Court noted that Hoeft-Ross was precluded from conducting discovery because of “their failure to appear at the hearing and their failures regarding the initial disclosures and propounding a discovery plan and a scheduling order. (E.R. 13.) This thorough review of the Magistrate’s considerations demonstrates that the District Court properly gave consideration to all of the facts surrounding HoeftRoss’ discovery abuses. Although Hoeft-Ross attempts to parse and grossly inflate 4824-6487-4755.1

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the significance of imprecise statements by counsel for Hoeft during the case management conference, the record clearly establishes that the District Court did not make erroneous findings with respect to Hoeft-Ross’ discovery abuses. Moreover, the record contains ample evidence that the District Court was aware of the facts, and familiar with Mr. Hoeft-Ross, when it sanctioned Hoeft-Ross. During the January 18, 2007 case management conference, the Magistrate recounted on the record Hoeft-Ross’ numerous discovery abuses. (SER 5-10.) The Magistrate’s observations, combined with other relevant facts from the record, are as follows:

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1)

The matter was filed on March 2, 2005, and was soon approaching its two year anniversary; (SER 5:15-18.)

2)

The Hoefts were unable to obtain cooperation from Hoeft-Ross in obtaining and filing a discovery plan with the Court; (SER 6:15-23.)

3)

The Hoefts unilaterally filed a proposed Discovery Plan and Scheduling Order; (SER 6:19-21, 93-96.)

4)

The discovery plan filed by the Hoefts stated that “[p]ursuant to FRCP 26(f)(1), the parties have submitted their initial disclosures to each other. The parties have corresponded regarding a meet and confer, but have not conducted the meet and confer;” (SER 93:23-27.)

5)

The Court signed the proposed Discovery Plan and Scheduling Order—which acknowledged that initial disclosures had been made—and filed it on September 11, 2006; (SER 93-96.)

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6)

The September 11, 2006 Order set the discovery cut-off date for December 18, 2006; (SER 94:1516.)

7)

The Court ordered a case management hearing on October 20, 2006, because it had concerns about the status of the case; (SER 6-7.)

8)

Hoeft-Ross subsequently contacted the Court requesting a new date for the case management hearing because of a doctor’s appointment; (SER 7:3-14.)

9)

Upon receipt of a medical excuse from HoeftRoss, the Court rescheduled the hearing for January 18, 2007; (SER 7:15-17.)

10)

Hoeft-Ross filed a “Motion for an Extension of Time to Extend the Start of Discovery;” (SER 7:12-14.)

11)

The Motion for an Extension of Time stated that Hoeft-Ross had “submitted a list of Mandatory Exchanges and a Discovery Scheduling Order on July 27, 2006,” (SER 89:8-9.)

12)

Exhibit 5 of Plaintiffs’ Motion for Extension of Time, filed on September 25, 2006, contained Hoeft-Ross’ list of witnesses and documents exchanged pursuant to Fed. R. Civ. P. 26; (E.R. II 9-14; SER 89:19-20.)

13)

The Court granted the Motion for Extension of Time and noted that there was a case management hearing scheduled for January 18, 2007; (SER 7:15-17.)

14)

Apart from the federal question claims, Hoeft-Ross has filed an amended complaint that contained “30 or so of the spectrum of possible claims one can imagine that one might consider filing, and they are all state-law claims;” and (SER 7.) 24

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The Magistrate recognized that it had prior experience with Mr. Hoeft-Ross’ litigation in Federal Court. (SER 10:3-4.)

In consideration of all of these facts, and Hoeft-Ross’ failure to attend the hearing, the Magistrate determined that Mr. and Ms. Hoeft-Ross had waived any right to have input in the case management issues of concern to the Court. (SER 10:3-8.) The record is clear Hoeft-Ross not only disregarded the most fundamental requirements of the rules governing discovery—an initial meet and confer that triggers the start of discovery—but egregiously disregarded the Magistrate’s Order to appear for a case management conference. Additionally, Hoeft-Ross failed to ever respond to Defendants’ proposed scheduling order despite being prompted by the Hoefts, and failed to file their own proposed scheduling order with the Court. The Hoefts advised the Court twice in their Discovery Plan and Scheduling Order that special scheduling may be needed, and once that additional time for discovery may be necessary. (SER 94:16-18, 95:2, 96:1-2.) Accordingly, the Magistrate’s determinations and Order are plainly supported by the record. Hoeft-Ross’ pontifications that the District Court materially or otherwise based its sanctions on some misperception formed from statements made during the case management conference are specious. (AOB 26.) Importantly, the record is clear that prior to the conference, counsel for the Hoefts filed a Proposed Discovery Plan and Scheduling Order that informed the Court initial disclosures

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(inclusive of the 2 pieces of paper) had been exchanged, but that the parties had yet to meet and confer.

(SER 93.)

Also, more than three months prior to the

conference, Hoeft-Ross supplied the Court with a copy of their initial disclosures with their Motion for an Extension of Time. (SER 89:18-19.) When the District Court reviewed the Magistrate Judge’s April 17, 2007 Order, the District Court had the entire record before it, including the actual initial document disclosures made by Hoeft-Ross. Hoeft-Ross’ paltry disclosure of merely two documents in this case—that had already been used as exhibits in prior motion work—blatantly violated the spirit and substance of Fed. R. Civ. P. 26(a)(1)(A), which provides, in part, that all parties must disclose a copy, or description, of “all documents . . . in its possession, custody, or control and may use to support its claims or defenses.” The deficiency in Hoeft-Ross’ disclosures and approach to Fed. R. Civ. P. 26(a) renders their discovery compliance as the substantive equivalent of doing nothing at all. The Magistrate was well–versed with the record and these Plaintiffs, and suffered no misunderstanding as to what Hoeft-Ross had done or not done by way of discovery. 3.

Three Out of the Four Appellants Have Not Alleged Any Excusable Neglect

Hoeft-Ross argues excusable neglect, which was considered and rejected by the Magistrate and the District Court Judge. 4824-6487-4755.1

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previously offered to the Magistrate was argued only by one appellant, Mr. HoeftRoss. There is no explanation whatsoever from three of the four appellants as to why all appellants (1) failed to attend the case management conference, (2) failed to comply with the meet and confer requirements, and (3) failed to timely submit a proposed Discovery Plan and Scheduling Order. The record is void of any claims of physical or mental conditions by Martin Hoeft-Ross, who was a minor when the litigation commenced but who reached the age of majority in December, 2006. Martin Hoeft-Ross has not communicated in this case at all since reaching the age of majority.

The record is equally void of any claims of physical or mental

conditions by Kirsten Hoeft-Ross, now also an adult. Finally, Monica Hoeft-Ross offers no authenticated or competent evidence of any kind to support a theory that she is currently mentally or physically unable to comply with the discovery rules. Rather, there is only an unsupported reference that Monica Hoeft-Ross may have been treated for mental disorders. (AOB 4.)4 Hoeft-Ross’ complete failure on appeal to offer any reason for Martin, Kirsten, and Monica Hoeft-Ross’ neglect in failing to attend the case management hearing and neglect in failing to abide by Federal Rules 26 and 26-1 precludes a determination of excusable neglect with respect to these particular appellants.

4

Hoeft-Ross’ citation to E.R. II 36, an unauthenticated report from a doctor Steven E. Berman, does not make any reference to treatment for Mrs. Hoeft-Ross’s alleged mental disorder. 4824-6487-4755.1

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In the Unlikely Event That This Court Determines that the Application of the Briones Test is Appropriate, the Record Demonstrates that Hoeft-Ross’ Disregard of the Federal Rules of Civil Procedure was Not Excusable

The Court in Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) held that when determining whether a party’s neglect is excusable under Fed. R. Civ. P. 60(b), a Court should consider “the danger of prejudice . . ., the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” In addition, the Briones Court found that “[t]hese four enumerated factors, while not an exclusive list, provide a framework with which to determine whether missing a filing deadline constitutes ‘excusable’ neglect.” Id. However, when applying this test, the Briones Court recognized that “the determination of whether a party’s neglect is excusable ‘is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.’” Id. at 382 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 (1993)). It is clear that in the instant case, the District Court considered all of the relevant circumstances surrounding Hoeft-Ross’ discovery abuses and failure to attend the case management hearing. As is demonstrated above, the Magistrate was mindful of all of the circumstances surrounding Hoeft-Ross’ failure to initiate discovery in this case for over two years. 4824-6487-4755.1

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Moreover, the District Court’s

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December 5, 2007 Order demonstrates that the Court carefully reviewed all of the circumstances surrounding Hoeft-Ross’ discovery delay.

The District Court

properly recognized that Hoeft-Ross’ medical excuses could not be analyzed in a bubble, and that Hoeft-Ross’ contemporaneous filings must be considered in light of his allegations that he could not participate in litigation. (E.R. 13:0-21.) The Court also considered Mr. Hoeft-Ross’s delay in participating in a Rule 26 conference, which is demonstrated in the parties’ correspondence.5 (E.R. 12; SER 49, 52, 61, 69, and 72-73.) In addition, the District Court also properly took into account the fact that even though Mr. Hoeft-Ross’ doctor may have recommended that he not participate in litigation, Mr. Hoeft-Ross had the option of voluntarily dismissing the case. (E.R. 13:23.) Instead, Mr. Hoeft-Ross chose to continue his attempts to delay the litigation at his own peril. Finally, when considering the four factors enumerated in the Briones v. Riviera Hotel & Casino case, it is clear that Hoeft-Ross’ neglect is not excusable. First, there was a great danger of prejudice to the Hoefts that is caused by HoeftRoss’ delay.

Protracted delay in conducting discovery prejudices the Hoefts

because every discovery extension forces the Hoefts to incur additional fees and

5

The record establishes that counsel for the Hoefts made multiple attempts to schedule an initial meet and confer but was met with nothing but excuses and delay from Hoeft-Ross. (SER 72-73.) Hoeft-Ross would repeatedly cancel agreed upon dates for the meet and confer and would fail to offer alternative dates, despite repeated requests for such by the Hoefts. (SER 72-73.) 4824-6487-4755.1

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costs, this is especially true where Hoeft-Ross fails to attend a hearing where the Hoefts are represented by counsel. The second factor, the length of the delay and its potential impact on judicial proceedings, weighs heavily against Hoeft-Ross. As noted by the District Court, “[t]his case has been pending for almost three years. Thus, proceedings to reach a resolution to this case are desirable.” (E.R. 13:23-25.) Yet, Hoeft-Ross continues to offer nothing but unbounded requests to extend the time for discovery. This continued delay greatly impacts this case because the delay is indefinite, and threatens to prevent the Hoefts, who are elderly, from ever reaching a final resolution to this dispute. The third factor, the reason for the delay, also suggests that Hoeft-Ross’ neglect should not be excused. Only one of the four appellants has given any reason for their failure to attend the scheduling conference. Thus, there is no reason for Monica, Kirsten, and Martin Hoeft-Ross’ failure to attend the scheduling conference. In addition, Hiawatha Hoeft-Ross’ reason for delay is thoroughly undermined by his actions in this case. On the one hand he alleges that he is unable to participate in the litigation, but he simultaneously files several lengthy papers and declarations arguing his position in the lawsuit. This double standard was recognized by the District Court and brings into question Mr. HoeftRoss’ allegations of illness. (E.R. 13:20-21.)

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The fourth factor, whether Hoeft-Ross acted in good faith, also weighs in favor of a determination that Hoeft-Ross’ neglect was inexcusable. First, HoeftRoss sought extensions to respond to the Motion to Dismiss because of illness. Next, Hoeft-Ross failed to ever participate in a meet and confer because of further allegations of illness. Finally, Hoeft-Ross extended the date of the scheduling conference because of a doctor’s appointment—and then failed to attend the conference. These repeated and subjective delays evidence that Hoeft-Ross is not proceeding in good faith. Because all of the Briones factors weigh against a determination of excusable neglect, and because the District Court properly considered all of the facts when it found that Hoeft-Ross had failed to demonstrate excusable neglect, the District Court’s findings should be affirmed. IV. CONCLUSION For the reasons stated above, the Hoefts respectfully request that this Court affirm the Order of the District Court granting summary judgment in favor of the Hoefts and against Hoeft-Ross. RESPECTFULLY SUBMITTED this 15th day of May, 2009. PARSONS BEHLE & LATIMER /s/ Michael R. Kealy Michael R. Kealy, Esq. 4824-6487-4755.1

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CERTIFICATE OF COMPLIANCE PURSUANT TO CIRCUIT RULE 32-1 Case No. 07-17369 I certify that that the brief is proportionately spaced, has a typeface of 14 points or more and contains 7,317 words. Dated: May 15, 2009.

/s/ Michael R. Kealy _____________ Michael R. Kealy

STATEMENT OF RELATED CASES There are no known related cases pending in this Court.

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CERTIFICATE OF SERVICE Pursuant to FRAP 25(d), I hereby certify that I am an employee with the law firm of Parsons Behle & Latimer, and that on the 15th day of May, 2009, I caused a true and correct copy of the foregoing Answering Brief to be served via the Court’s CM/ECF system and via U.S. Mail at Reno, Nevada, in a sealed envelope with first-class postage fully prepaid and addressed as follows: Chad Fears, Esq. Jared Richards, Esq. Snell & Wilmer, LLP 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169

/s/ Tracy L. Brown Employee of Parsons Behle & Latimer

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