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AMADASU v. ROSENBERG

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

ORDER

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.

  SO ORDERED.

20040503

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