nobigdeal said:
for your kindly replies. It seems that you are actively researching EDNY records. Have you come across any cases/documents that are useful to fight in the court against possible tricks CIS might play? Such as judegement in our favor, examples in our favor etc. If possible, would you please share such documents with us so all of us can benefit from your hard work? Thanks!
Ok, will do.
Here is a sample motion to oppose that extension. Judge (N. Gershon of EDNY) denied USCIS' motion for extension:
Petitioner files this motion to oppose the Motion of Defendants for another 30-day extension to file response to the Petitioner’s complaint.
ANALYSIS
Fed. R. App. P. 4(a)(5)(A)(i) permits a district court "to extend the time to file a notice of appeal if: (i) a party so moved no later than 30 days after the time prescribed by this Rule 4(a) expires; and (ii) that party shows excusable neglect or good cause."
At this stage, however, Petitioner does not believe that Defendants have demonstrated an appropriate basis for another extension. Defendants argue that their request for an extension should be granted because they have filed the Motion prior to the expiration of the 30-day extension following the expiration of Petitioner’s original complaint and can demonstrate "good cause." Mem. at 2. In so arguing, Defendants seek to avoid application of the "excusable neglect" standard under Fed. R. App. P. 4 and erroneously claim that the appropriate standard for the Court to apply to the Motion is one of "good cause." See Mem. at 3 n.1.
The 1979 Advisory Committee Notes upon which Defendants rely for their claim that the correct standard is "good cause," see Mem. at 3 n.1, explicate a draft rule that was not adopted, and in any event present an analysis that does not survive the 2002 amendment to Rule 4(a)(5), which states clearly that the standard to be applied to requests for extensions of time is "excusable neglect or good cause" regardless of when the request is filed:
Despite the text of Rule 4(a)(5)(A), most of the courts of appeals have held that the good cause standard applies only to motions brought prior to the expiration of the original deadline and that the excusable neglect standard applies only to motions brought during the 30 days following the expiration of the original deadline. [Citations omitted.] These courts have relied heavily upon the Advisory Committee Note to the 1979 amendment to Rule 4(a)(5). But the Advisory Committee Note refers to a draft of the 1979 amendment that was ultimately rejected. The rejected draft directed that the good cause standard apply only to motions filed prior to the expiration of the original deadline. Rule 4(a)(5), as actually amended, did not. See 16A Charles Alan Wright, et al., Federal Practice and Procedure § 3950.3, at 148-49 (2d ed. 1996).
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A motion for an extension filed prior to the expiration of the original deadline may be granted if Defendants show either excusable neglect or good cause. Likewise, a motion for an extension filed during the 30 days following the expiration of the original deadline may be granted if the Defendants show either excusable neglect or good cause.
The good cause and excusable neglect standards have "different domains." Lorenzen v. Employees Retirement Plan, 896 F.2d 228, 232 (7th Cir. 1990). They are not interchangeable, and one is not inclusive of the other. The excusable neglect standard applies in situations in which there is fault; in such situations, the need for an extension is usually occasioned by something within the control of the Defendants. The good cause standard applies in situations in which there is no fault - excusable or otherwise. In such situations, the need for an extension is usually occasioned by something that is not within the control of the Defendants.
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2002 Advisory Ctte. Notes to sub. 4(a)(5)(A)(ii).
Here, the need for an extension is occasioned by something entirely within the control of the Defendants, their decision to ask this Court 30-day extension from the expiration of the original complaint before filing this motion for another 30-day extension. Thus, the appropriate standard to be applied to the Motion is "excusable neglect" and not "good cause". As the Defendants have made no effort to show their delay was excusable, there is now no reason to grant the Motion.
Finally, Petitioner questions whether the Defendants would even be able to satisfy the "good cause" standard given their delay in filing their response. In this connection, Defendants imply that the late instructions from DHS (Department of Homeland Security) are part of the reason why there is "good cause" for extension. See Mem. at 1 ("it was not until this early morning that the General Counsel of the Department of Homeland Security (DHS)" asked…”). Petitioner notes that DHS is part of the defendants and its General Counsel’s late action, without any further explanation, does not qualify for “good cause” standard.
CONCLUSION
This Court should deny the defendant’s Motion for another 30-day extension.
. We all envy you,Xu111