Safwat Soliman v. Mike Johanns, Secretary, United States Department of Agriculture

BYE, Circuit Judge,

dissenting.

I respectfully dissent. Under Federal Rule of Civil Procedure 6(b)(1), the district court “for cause shown may at any time in its discretion” order a period enlarged if a request therefor is made before the originally prescribed period ends. In my view, the magistrate judge abused his discretion by denying Solimán another extension, given the death of Soliman’s father and his consequent need to reside temporarily out of state, the fact that his extension motion was unopposed, and the brief time (36 days) between the filing of the summary judgment motion and the district court’s final order. Cf. Benjamin v. Aroostook Med. Ctr., 57 F.3d 101, 108 (1st Cir.1995) (in deciding motion for extension of time, district court’s failure to allow for factors beyond party’s control, such as counsel’s unexpected illness, may, in certain cases, constitute abuse of discretion). I note that the magistrate judge’s warning that no more extensions would be granted appeared in a March 23 order, when Solimán was already out of the state because of his father’s death. Further, Solimán was not given time to object to the magistrate judge’s April 7 denial of another extension before the district court issued its April 8 final order. See Fed.R.Civ.P. 72(a) (within 10 days after being served copy of magistrate judge’s order on nondispositive mat*924ters, party may serve and file objections to order, and thereafter may not assign as error defect in order to which objection was not timely made). I would therefore reverse the grant of summary judgment and remand for further proceedings.