United States District Court, S.D. New York
May 3, 2004.
ARLINGTON AMADASU MD, Plaintiff, -against- MARGARET ROSENBERG, MD, et al. Defendants
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Plaintiff moves "in opposition to and to strike Magistrate's Order
dated 4/22/04 endorsed on Japhet Boutin (Boutin)'s [sic] letter dated
4/21/04, as well as to strike the said Boutin's letter."
On April 21, 2004, Mr. Boutin, attorney for defendant Zelen, wrote to
Magistrate Judge Peck and requested an extension of time for the filing
of a motion, the last day for filing which had been fixed by a prior
order as May 7, 2004. Judge Peck granted the extension. Plaintiff
complains that he did so without affording plaintiff an opportunity to
respond. Indeed, he claims that this violated his right to due process.
Fed.R.Civ.P. 6(b)(1) provides that a district court may grant
extensions of time, with exceptions not here relevant, "with or without
notice . . . if request therefor is made before the expiration of the
period originally prescribed or as extended by a previous order . . . " As
the time for moving to dismiss the amended complaint, as established by
Judge Peck's earlier order was May 7, Rule 6(b)(1) authorized him to
grant the requested extension without notice to plaintiff, let alone an
opportunity to be heard. The constitutional claim is frivolous, as no
substantial right of plaintiff was affected.
Accordingly, the motion is denied. Treating the motion as an appeal
from the Magistrate Judge's order, the order appealed from is affirmed.
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