Bassford v. Newby

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Gabriel Bassford,
Plaintiff,
v.
City of Mesa, et al.,
Defendants.
No. CV-22-00572-PHX-JAT
ORDER
Pending before the Court is Plaintiff Gabriel J. Bassford’s Motion requesting an
extension of time to file an appeal. The matter is fully briefed and the Court now rules.
Because Plaintiff has failed to show that his untimely filing was due to excusable neglect,
the Court will deny his Motion.
I. BACKGROUND
On June 2, 2026, the Court directed the Clerk of the Court to enter final judgment
in favor of Defendants. (Docs. 192, 193). The parties then briefed whether the Court should
grant (1) Plaintiff’s request for trial transcripts at the government’s expense; and (2)
Plaintiff’s request for a new trial and/or alteration or amendment of the judgment. (Docs.
194, 197, 199, 200). The Court decided against granting both Motions on July 22, 2026.
(Doc. 201). This meant that Plaintiff had until August 21, 2026, to file a Notice of Appeal.
See Fed. R. App. P. 4(a)(4). He missed that deadline by two days,1 see (Docs. 203, 204),
and therefore filed the Motion at issue, alleging that his tardiness was due to excusable
1 This Court permitted Plaintiff to file electronically, and he filed his Notice of Appeal on
a Sunday.
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neglect, (Doc. 202 at 2-3).
II. ANALYSIS
The Court may extend Plaintiff’s filing window if he moves for an extension within
30 days of the expiration of the original deadline and “shows excusable neglect or good
cause.”2 Fed. R. App. P. 4(a)(5)(A). To determine whether a late filing is attributable to
excusable neglect, the Court examines “all relevant circumstances surrounding the party’s
omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 394 (1993).
The Supreme Court has identified four non-exhaustive factors to consider: (1) the danger
of prejudice to the non-moving party; (2) the length of delay and its effect; (3) the reason
for the delay, including whether it was in the moving party’s control; and (4) whether the
movant’s conduct was in good faith. Id. at 395; see Pincay v. Andrews, 389 F.3d 853, 855-
60 (9th Cir. 2004) (en banc) (interpreting the Pioneer factors).
On balance, the Court finds that the factors weigh against a finding of excusable
neglect.3 To begin, the first factor—the danger of prejudice to the non-moving party—
weighs in favor of Plaintiff. Although Defendants strongly oppose the Motion, their
opposition seems to hinge more on the strength of Plaintiff’s likely appellate arguments
than anything else. (Doc. 207, at 6-7). To be sure, Defendants would have to defend against
these plausibly meritless arguments on appeal and perhaps incur costs as a result. (Id. at 6).
But “[b]eing forced to litigate the case on the merits, and incurring the costs of doing so,
does not amount to prejudice.” Fajado v. Gen. Motors LLC, Case No. 2:25-cv-08669-SPG-
E, 2026 WL 2507714 (C.D. Cal. Aug. 25, 2026).
The second factor—the length of the delay and is effect—likewise favors Plaintiff.
2 Plaintiff has not argued that there is good cause to grant his Motion, see generally (Doc.
202), and the Court cannot find a reason to grant his Motion based on good cause. As said
below, Plaintiff’s own inattentiveness was the undisputed cause of the missed deadline.
3 Plaintiff also failed to timely file his reply briefing regarding this analysis and moves the
Court to accept this late filing. (Doc. 208). The Court finds that the balance of the Pioneer
factors weighs in Plaintiff’s favor insofar as the reply briefing goes; Defendants would not
be prejudiced by the filing, the filing is not substantially late, and although the reason for
the delay is not favorable, it comes from a good-faith effort to comply with timing rules,
see (Doc. 208 at 3). Accordingly, the Court will grant the Motion and consider the reply
briefing in the discussion of the Pioneer factors.
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The delay totaled just calendar two days, which does not amount to a “substantial” period
of time. See Harvest v. Castro, 531 F.3d 737, 747 (9th Cir. 2008) (concluding that a 64-
day delay in seeking relief was “substantial”). Defendants do not argue otherwise.
The third factor—the reason for the delay, including whether it was in the moving
party’s control—favors Defendants. Of the four factors, this one carries the greatest weight
in determining excusable neglect. In re Edwards Theatres Circuit, Inc., 70 F. App’x 950,
952 (9th Cir. 2003) (citing Hospital del Maestro v. NLRB, 263 F.3d 173, 175 (1st Cir. 2001)
(“The excuse given for the late filing must have the greatest import.”)).
Plaintiff argues that his delay resulted from inadvertence given “competing work
and personal obligations.” (Doc. 202 at 3). Although there is no categorical rule saying so,
see Pincay, 389 F.3d at 860, the Supreme Court noted that such “inadvertence, ignorance
of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect,”
Pioneer, 507 U.S. at 392. That is the case here. Plaintiff appears to have been in full control
of his filings and scheduling, even in the face of competing obligations. Indeed, he has filed
a multitude of motions before the Court without issue, and he has not explained any
particular or compelling reason why this filing should be different.4 See, e.g., Wystrach v.
Ciachurski, CV 05-119 TUC DCB, 2005 WL 8165148, at *2 (D. Ariz. July 16, 2005).
Thus, because the reason for the delay seems to be mere “run-of-the-mill inattentiveness,”
this third factor weighs against granting an extension. See Symbionics Inc. v. Ortlieb, 432
Fed. App’x 216, 220 (4th Cir. 2011).
Plaintiff contends that the events he manages include “basic life responsibilities”
like “employment, income, housing, and litigation.” (Doc. 202 at 3). Although clarified in
Plaintiff’s reply briefing, the Court has trouble determining why any person engaged in
4 While Plaintiff cites to Marx v. Loral Corp., 87 F.3d 1049 (9th Cir. 1996), (Doc. 209 at
2), to demonstrate that a calendaring error may be an acceptable and good-faith reason for
a delay, the Court reads that case to be resolved based on the deferential standard the Ninth
Circuit Court of Appeals applies to grants or denials of similar motions. Marx, 87 F.3d at
1054. Indeed, the court indicated that the application of Pioneer was “lenient” to the
plaintiffs and that, under a less deferential standard, it would be less inclined to affirm the
matter given the movant’s mere timing error. Id. (noting that the defendants convincingly
argued that the late filing was attributable to the attorney's calendaring miscalculation
rather than a good faith attempt to schedule a meeting with the plaintiffs).
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litigation could not say the same thing. See Pincay, 389 F.3d at 860 (refusing to establish
a per se rule); Laurino v. Syringa General Hospital, 279 F.3d 750, 753 (9th Cir. 2002)
(finding that a delay was acceptable for a plaintiff facing the combined effects of divorce,
career change, and a change of attorneys).
The final factor—good faith—similarly weighs against Plaintiff. Unlike cases in
which a party relies on the wrong statute or authority when noting a filing deadline, see
Feeder Line Towing Service, Inc. v. Toledo P. & W. R. R. Co., 539 F.2d 1107, 1109 (7th
Cir. 1976), Plaintiff here forgot to account for his deadline. This forgetfulness is certainly
neglectful, but Plaintiff has failed to show how could be considered excusable. See, e.g.,
Kyle v. Campbell Soup Co., 28 F.3d 928, 931-32 (9th Cir. 1994) (determining that a
miscalculation of time in which to file notice of appeal did not show excusable neglect).
III. CONCLUSION
Extensions of time are granted only in “extraordinary cases where injustice would
otherwise result.” Oregon v. Champion Int’l Corp., 680 F.2d 1300, 1301 (9th Cir. 1982).
Plaintiff does not present such a case here because his untimely filing is predicated only on
a failure to calendar the deadline. (Doc. 202 at 3). Without more than his perfunctory claim
that he needed to manage a myriad of wide-ranging work and personal events, the Court
cannot conclude that the balance of the Pioneer factors favor an extension of time. Though
the first two factors weigh in Plaintiff’s favor, the Court gives more weight to the last two
factors, which weigh in favor of Defendants.
Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Leave to file his reply briefing out of
time (Doc. 208) is granted.
IT IS FURTHER ORDERED that Plaintiff’s Motion for an Extension of Time to
file an appeal (Doc. 202) is denied.
/ / /
/ / /
/ / /
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IT IS FURTHER ORDERED that the Clerk of the Court shall forward a copy of
this Order to the Court of Appeals regarding USCA case number: 26-5546.
Dated this 21st day of September, 2026.
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