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United States of America v. Graham Flagg Godbey

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


December 1, 2011

UNITED STATES OF AMERICA,
v.
GRAHAM FLAGG GODBEY, DEFENDANT.

The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge

DECISION AND ORDER

This case was referred to me by Hon. Richard J. Arcara for supervision of all pretrial matters [14].*fn1 Before me is defendant's motion [21] for leave to file pretrial motions beyond the original deadline of November 14, 2011 set forth in my October 6, 2011 Scheduling Order [16]. Defendant's pretrial motions were ultimately filed on November 28, 2011 [20], and he also seeks leave to file additional motions "as the factors and evidence emerge through requested disclosure." Saraceno Affirmation [21], ¶8. For the following reasons, defendant's motion is granted in part, and denied in part.

ANALYSIS

Pursuant to Fed. R. Crim. P. 45(b)(1)(B), a court "for good cause may [extend a deadline] on a party's motion made . . . after the time expires if the party failed to act because of excusable neglect." "Factors to be considered in evaluating excusable neglect include '[1] the danger of prejudice to the [non-movant], [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith.'" United States v. Pomerico, 2008 WL 4469465, *1 (E.D.N.Y. 2008) (quoting Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003), cert. denied, 540 U.S. 1105 (2004)).

Defendant's counsel states that he missed the deadline for filing pretrial motions because defendant's file was temporarily misplaced during his office relocation. Saraceno Affirmation [21], ¶¶4-6. The government concedes that "the defendant has set forth a reasonable basis to excuse the late-filing". Government's Response [22], p. 2.

CONCLUSION

Since "there is a preference for resolving disputes on the merits" (Powerserve International, Inc. v. Lavi, 239 F.3d 508, 514 (2d Cir. 2001)), defendant's motion [21] is hereby granted to the extent it seeks leave to accept the late-filed pretrial motions [20], but otherwise denied, without prejudice to the possibility of additional motions in the future, upon a showing of good cause. An amended scheduling order will be issued.

SO ORDERED

Jeremiah J. McCarthy


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