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UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 2:20-CV-14159-ROSENBERG/MAYNARD 

DJ LINCOLN ENTERPRISES, INC. ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) 

 ) 

 ) 

GOOGLE, LLC ) 

 ) 

 Defendant. ) 

 ) 

PLAINTIFF’S MOTION FOR LEAVE TO FILE 

MEMORANDUM IN OPPOSITION TO 

DEFENDANT’S MOTION FOR FEES 

Plaintiff, DJ Lincoln Enterprises, Inc. (“Lincoln” or “Plaintiff”), by counsel, 

pursuant to Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure and Local Civil Rule 

7.1, respectfully moves the Court for leave to file its Memorandum in Opposition to 

Google, LLC’s (“Google”) motion for attorney’s fees. 

 1. Lincoln’s memorandum in opposition to Google’s motion for attorney’s 

fees was due September 29, 2021. 

 2. On August 20, 2021, Lincoln filed notice of appeal of the Court’s Order 

granting Google’s motion to dismiss Lincoln’s second amended complaint. There were 

multiple deadlines in connection with the appeal, including Lincoln’s opening brief 

which was due October 4, 2021. 

Case 2:20-cv-14159-RLR Document 58 Entered on FLSD Docket 10/05/2021 Page 1 of 4
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 3. Counsel for Lincoln inadvertently calendared the date for filing Lincoln’s 

response to Google motion as October 4, 2021. 

 4. When Counsel learned of the mistake on Saturday, October 2, 2021, 

Counsel for Lincoln reached out to Counsel for Google via email, and advised that 

Lincoln was out of time and would need to file a motion for leave. Counsel for Lincoln 

requested Google’s agreement to a few extra days to file the opposition. Counsel for 

Google notified Counsel for Lincoln that it would not consent. 

 5. On October 5, 2021, Lincoln filed its Memorandum in Opposition to 

Google’s motion. Lincoln seeks leave pursuant to Rule 6(b)(1)(B). 

 6. “Whether a party has shown excusable neglect is an equitable 

determination that requires an analysis of all of the relevant circumstances surrounding 

the delay.” Baker v. JEA, 2021 WL 4033279, at * 1 (M.D. Fla. 2021) (quoting Kubiak v. 

S.W. Cowboy, Inc., 2017 WL 1080000, at * 4 (M.D. Fla. 2017) (unpublished) (citation 

omitted)). Such circumstances include but are not limited to: (1) the danger of prejudice 

to the nonmovant; (2) the length of the delay and the 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. Id. (citation omitted). “Primary 

importance should be accorded to the absence of prejudice to the nonmoving party and to 

the interest of efficient judicial administration.” Advanced Estimating Sys., Inc. v. Riney, 

77 F.3d 1322, 1325 (11th Cir. 1996) (citation omitted). 

 7. Upon review of the filings, the record as a whole, and the applicable law, 

the Court should grant Lincoln’s motion. First, there is no danger of prejudice to 

Google. The substance of Lincoln’s opposition comes as no surprise to Google. The 

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facts and issues in dispute in this case are well-known to the parties. Google would not 

be harmed in any way by a brief extension of the deadline to file Lincoln’s opposition. 

There was only a brief delay in filing Lincoln’s opposition, which had no impact on the 

judicial administration of this case. Lincoln acted in good faith and moved for relief as 

soon as Counsel discovered the calendaring error. 

 7. Google’s motion for attorney’s fees raises complex issues of fact and law. 

The interests of justice would be served by full briefing and a determination of Google’s 

motion on the merits. 

 WHEREFORE, Lincoln respectfully requests the Court to grant its motion, and 

accept Lincoln’s opposition as filed. 

DATED: October 5, 2021 

 DJ LINCOLN ENTERPRISES, INC. 

 By: /s/ Steven S. Biss 

 Steven S. Biss (VSB # 32972) 

 300 West Main Street, Suite 102 

 Charlottesville, Virginia 22903 

 Telephone: (804) 501-8272 

 Facsimile: (202) 318-4098 

 Email: stevenbiss@earthlink.net

 (Admitted Pro Hac Vice) 

 Jordan Reid Wagner (Florida Bar No: 14852) 

 73 SW Flagler Avenue 

 Stuart, FL 34994 

 Phone: (772) 286-0023 

 Service email: jwagner@kibbeylaw.com

 Counsel for the Plaintiff 

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CERTIFICATE OF SERVICE 

 I hereby certify that on October 5, 2021 a copy of the foregoing was filed 

electronically using the Court’s CM/ECF system, which will send notice of electronic 

filing to counsel for the Defendant and all interested parties receiving notices via 

CM/ECF. 

 By: /s/ Steven S. Biss 

 Steven S. Biss (VSB # 32972) 

 300 West Main Street, Suite 102 

 Charlottesville, Virginia 22903 

 Telephone: (804) 501-8272 

 Facsimile: (202) 318-4098 

 Email: stevenbiss@earthlink.net

 (Admitted Pro Hac Vice) 

 Jordan Reid Wagner (Florida Bar No: 14852) 

 73 SW Flagler Avenue 

 Stuart, FL 34994 

 Phone: (772) 286-0023 

 Service email: jwagner@kibbeylaw.com

 Counsel for the Plaintiff

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