Gary Atkins v. RAYMOND EMABUS, Jr., Secretary, Department of the Navy

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY ATKINS,
Plaintiff - Appellant,
v.
RAYMOND E MABUS, Jr., Secretary,
Department of the Navy,
Defendant - Appellee.
No. 14-56087
D.C. No. 3:12-cv-01390-GPC-
WVG
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted June 6, 2016
Pasadena, California
Before: REINHARDT and WARDLAW, Circuit Judges and BENNETT,** Senior
District Judge.
Gary Atkins appeals the district court’s order granting summary judgment to
Raymond E. Mabus, Jr., Secretary of the Department of the Navy (the Navy), on
FILED
JUN 28 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Mark W. Bennett, Senior District Judge for the U.S.
District Court for the Northern District of Iowa, sitting by designation.

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Atkins’ claims for violations of the Privacy Act, 5 U.S.C. § 552a, and denying
Atkins’ request to enlarge time for discovery. We have jurisdiction under 28
U.S.C. § 1291, and we reverse and remand.
1. The district court abused its discretion by refusing to permit further
discovery. See Mackey v. Pioneer Nat. Bank, 867 F.2d 520, 523 (9th Cir. 1989).
Atkins’ failure to conduct discovery within the allotted time frame was the result of
his counsel’s excusable neglect. See Fed. R. Civ. P. 6(b) (“When an act may or
must be done within a specified time, the court may, for good cause, extend the
time where . . . the party failed to act because of excusable neglect.”). During the
discovery period, counsel suffered a serious concussion that incapacitated him for
weeks and limited his ability to work for months; he also began divorce
proceedings. Due to both his impaired state and unrealistic recovery expectations,
counsel did not seek assistance from other attorneys at his small law firm to help
him comply with the discovery deadline. Although counsel’s delay in seeking an
extension of the discovery cutoff was lengthy, the delay was medically related and
there is no evidence indicating that counsel acted in bad faith or that an extension
would have prejudiced the Navy. See Ahanchian v. Xenon Pictures, Inc., 624 F.3d
1253, 1261 (9th Cir. 2010) (the excusable neglect determination requires courts to
“apply a four-factor equitable test, examining: (1) the danger of prejudice to the
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opposing party; (2) the length of the delay and its potential impact on the
proceedings; (3) the reason for the delay; and (4) whether the movant acted in good
faith”); see also Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. P’ship, 507
U.S. 380, 392 (1993) (“[I]t is clear that ‘excusable neglect’ under Rule 6(b) is a
somewhat ‘elastic concept’ and is not limited strictly to omissions caused by
circumstances beyond the control of the movant.”).
Additionally, when, as here, “a case involves complicated questions of law
and fact, and a proper resolution of these issues would be advanced by further
development of the record in the particular case,” summary judgment should not be
granted. In re Rigden, 795 F.2d 727, 731 (9th Cir. 1986). Atkins invoked an
arcane statute to assert claims requiring him to prove that a complex medical
records system maintained by the United States military inadequately safeguarded
his sensitive medical information. Although Atkins’ evidence was deficient in
many respects, it was “sufficient to apprise the court that there [was] important and
relevant information that could be proffered to defeat the [Navy’s summary
judgment] motion.” 10A Charles Alan Wright & Arthur R Miller, Federal
Practice and Procedure § 2728 (3d ed. 2016).
2. Because we conclude that additional discovery should be permitted, we
do not reach the merits of the district court’s summary judgment ruling.
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Accordingly, we REVERSE and REMAND with instructions that the
district court reopen discovery for a reasonable period of time.
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