FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMIR CYRUS AHANCHIAN, an 

individual,

Plaintiff-Appellant,

v. No. 08-56667

XENON D.C. No. PICTURES, INC., a Delaware 

corporation; CKRUSH 2:07-cv-06295- , INC., a

Delaware corporation; SAM JFW-E

MACCARONE, an individual;

PRESTON LACY, an individual,

Defendants-Appellees. 

AMIR CYRUS AHANCHIAN, an 

individual,

Plaintiff-Appellant, No. 08-56906

v. D.C. No.

XENON PICTURES, INC., a California  2:07-cv-06295-

corporation; CKRUSH INC., a JFW-E

Delaware corporation; SAM OPINION MACCARONE, an individual;

PRESTON LACY, an individual,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

John F. Walter, District Judge, Presiding

Argued and Submitted

February 2, 2010—Pasadena, California

Filed November 3, 2010

18133
Before: Andrew J. Kleinfeld, Kim McLane Wardlaw and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Wardlaw

18134 AHANCHIAN v. XENON PICTURES, INC.
COUNSEL

Jeffrey Jay Daar, Daar & Newman, PC, Los Angeles, California, for the plaintiff-appellant, Amir Cyrus Ahanchian.

Leonard S. Machtinger, Kenoff & Machtinger, LLP, Los

Angeles, California; Richard L. Charnley, Terry Anastassiou

and Ernest E. Price, Ropers, Majeski, Kohn, & Bentley, Los

Angeles, California, for the defendants-appellees.

OPINION

WARDLAW, Circuit Judge:

Procedure “is a means to an end, not an end in itself—the

‘handmaid rather than the mistress’ of justice.” Charles E.

Clark, History, Systems and Functions of Pleading, 11 Va. L.

Rev. 517, 542 (1925). While district courts enjoy a wide latitude of discretion in case management, this discretion is circumscribed by the courts’ overriding obligation to construe

and administer the procedural rules so as “to secure the just,

speedy, and inexpensive determination of every action and

proceeding.” Fed. R. Civ. P. 1. These consolidated appeals

arise from a district court’s refusal to exercise discretion consistent with the dictates of Rule 1. 

Amir Cyrus Ahanchian’s counsel moved for a one-week

extension of time to file his opposition to defendants’ summary judgment motion, citing as good cause: (1) the

extremely short eight day response deadline (with three of

those days falling over a federal holiday weekend) created by

the combination of an unusual local rule and defendants’ litiAHANCHIAN v. XENON PICTURES, INC. 18137
gation tactics; (2) his preplanned absence, beginning the day

defendants filed the motions, in fulfillment of an out-of-state

commitment; and (3) the large number of supporting exhibits

attached to defendants’ motion. Defense counsel, without

regard to the previous professional courtesies extended to him

by Ahanchian’s counsel, vigorously opposed the extension.

Despite the presence of what most reasonable jurists would

regard as good cause and the absence of prejudice to anyone,

the district court denied the motion. Even so, Ahanchian’s

counsel managed to file the opposition, albeit three days late,

due to a calendaring mistake and computer problems, along

with a motion asking that the district court accept the latefiled opposition. Five days later, the district court construed

that motion as one for reconsideration under Rule 60(b), and,

applying an incorrect legal standard, denied it. That same day,

having plaintiff’s opposition in hand, but refusing to consider

it, the district court granted defendants’ motion for summary

judgment, failing to provide any legal reasoning or citation to

law or facts.1 To add injury to insult, the district court

awarded defense counsel $247,171.32 in attorneys’ fees. We

conclude that the district court abused its discretion in denying both the request for an extension of time and the motion

to accept the late-filed opposition, and erred in granting

defendants’ motion for summary judgment and in awarding

attorneys’ fees to defense counsel.

1Ahanchian does not argue that we should reverse the district court for

its failure to provide any reasoning in its order granting summary judgment. However, we have held this alone is reversible error, because it precludes us from conducting a meaningful review of the district court’s

order. See Gov’t Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1225 (9th

Cir. 1998) (en banc) (noting that remand is appropriate where the district

court fails to “make a sufficient record of its reasoning to enable appellate

review”). Nonetheless, we have reviewed the district court record in its

entirety and reverse in part and affirm in part the award of summary judgment in the memorandum disposition filed concurrently with this opinion.

We also vacate the award of attorneys’ fees. 

18138 AHANCHIAN v. XENON PICTURES, INC.
I. FACTUAL AND PROCEDURAL BACKGROUND

These appeals arise from the creation of the movie National

Lampoon’s TV: The Movie, theatrically released in November

2006. Unlike traditional films, this movie eschews plot or

character development, instead lampooning several high profile television programs in a series of independent comedic

skits. This lawsuit involves the disputed authorship of a number of these skits. Ahanchian claims that ten skits he authored

(and subsequently copyrighted) either appear verbatim in the

movie or serve as the basis for skits included in the final version of the movie. 

Ahanchian filed a complaint on September 17, 2007 against

Sam Maccarone (director and writer of the film), Preston

Lacy (writer and actor), Xenon Pictures, Inc. (distributor), and

CKrush, Inc. (producer) asserting causes of action for copyright infringement, breach of an implied contract, and unfair

competition in violation of the Lanham Act. Apparently, Maccarone and Lacy were difficult to locate. Defense counsel for

Xenon Pictures, who had been appointed by the district court

to represent Maccarone and Lacy, sought additional time to

answer Ahanchian’s complaint on their behalf. Exhibiting the

professional courtesy expected of officers of the court,

Ahanchian’s counsel stipulated to an extension of time—

which stipulation the district court then rejected.

On January 7, 2008, the district court issued its scheduling

order establishing, among other deadlines: November 18,

2008, as the date for the commencement of trial; September

2, 2008, as the discovery cut-off date; and September 15,

2008, as the last day for hearing motions. Maccarone and

Lacy did not file their answer to the complaint until June 30,

2008. Because of Maccarone and Lacy’s late entrance into the

litigation, the parties entered into a joint stipulation on July 9,

2008, seeking to extend by twelve weeks all the deadlines

established by the scheduling order to allow more time for

discovery. The district court again denied the stipulated extenAHANCHIAN v. XENON PICTURES, INC. 18139
sion of time, finding that the parties had failed to demonstrate

good cause as to why discovery could not be completed by

September 2, 2008.

Because the district court’s scheduling order set September

15, 2008, as the last day for hearing motions, the local rules

in force at the time made August 25, 2008, the last date to file

any motion for summary judgment. See C.D. Cal. Local R. 6-

1 (2008) (requiring that any motion be filed within twentyone days before the hearing date). Though there is no indication in the record that they did so, the defendants assert that

they informed Ahanchian’s counsel on August 6, 2008, that

they would be filing a motion for summary judgment. On

August 25, 2008, the last possible day for filing, the defendants moved for summary judgment seeking dismissal of all

of Ahanchian’s claims and for terminating sanctions resulting

from a discovery dispute. These motions were accompanied

by roughly 1,000 pages of supporting exhibits and declarations. Because the defendants chose to wait until the last day

to file their motions, the local rules operated to set a deadline

of September 2, 2008—the day after Labor Day—for

Ahanchian to review these materials and to prepare and file

his oppositions. Ahanchian, therefore, was left with a mere

eight days, three over the Labor Day weekend, to draft his

oppositions to the motions. See C.D. Cal. Local R. 7-9 (2008)

(requiring any opposition to be filed no later than fourteen

days before the hearing date); Fed. R. Civ. P. 6(a)(1)(c)

(extending deadlines by an additional day where a deadline

would otherwise fall on a holiday). Also, Ahanchian’s lead

counsel was scheduled to travel out of state on August 25 to

fulfil a previously-scheduled commitment.2

Given the already unreasonably strained deadlines, within

which fell an out-of-state commitment and Labor Day week2On appeal, Ahanchian’s counsel revealed that his trip was required

because he was serving as a duly-elected California state delegate to a

major political party’s national convention. See Cal. Elec. Code § 6201. 

18140 AHANCHIAN v. XENON PICTURES, INC.
end, on August 28, 2008, Ahanchian asked defense counsel to

stipulate to a one-week continuance of the hearing date for

defendants’ motions, along with corresponding one-week

extensions of the deadlines for Ahanchian to file oppositions

and for defendants to reply. Defense counsel refused to so

stipulate. The very next day, on August 29, 2008, Ahanchian

filed an ex parte application pursuant to Local Rule 7-19 seeking a one-week extension. Ahanchian recited as good cause

for the requested extension of time that: (1) defendants had

waited until the last day to file their motions, choosing to file

four days before the Labor Day weekend, and with knowledge

of pending depositions; (2) the accompanying motions and

exhibits amounted to 1,000 pages of materials; (3) Ahanchian’s lead counsel had left the state on August 25 on a prescheduled trip and would not be returning until September 2;

and (4) Ahanchian, who was needed to respond to the motion,

was also out of town over Labor Day weekend. Ahanchian

noted that “[n]o party will suffer any prejudice” should the

court grant the continuance. 

Defendants opposed the motion, arguing that Ahanchian

had failed to demonstrate “good cause.” Specifically, they

argued that Ahanchian’s counsel “knew (or should have

known) that the motions would be filed no later than August

25—and yet, for reasons unexplained, this is precisely the

date plaintiff’s counsel decided to travel ‘out of state.’ Why?

No reason is offered.” In a footnote, the defendants posed

some hypothetical possibilities: “A family emergency? A conflicting work-related priority? Or a vacation to Mexico? The

point is, it is not explained. Absence [sic] explanation, good

cause cannot be discerned.” As for prejudice, defendants

made the weak and false arguments that the requested continuance would give Ahanchian “several weeks to prepare an

Opposition,” and yet defendants would have only one week

to file their reply. They also asserted that they would have

“less time to prepare for trial.” In point of fact, Ahanchian had

requested extensions of time to file both his opposition and

for the defendants’ replies. Had Ahanchian’s request been

AHANCHIAN v. XENON PICTURES, INC. 18141
granted, defendants would have had the full time allowed by

the local rules to reply. Moreover, the trial was not scheduled

to commence for another three months. 

Ahanchian ultimately filed his opposition to the summary

judgment motion three days late, on September 5, 2008,3 at

which time he also filed an ex parte application seeking permission to make the late filing.4

 On September 8, 2008, defendants responded by reiterating their opposition to any

extension of time, and urging the district court to “ignore” the

late opposition. They further suggested that Ahanchian’s

counsel’s representation that he believed the deadline was

September 4 was disingenuous, and that Ahanchian had failed

to adequately explain the technical computer problems that

had resulted in the one-day delay. 

On September 10, 2008, in a three-paragraph order, the district court granted defendants’ summary judgment motion in

full. It simultaneously denied Ahanchian’s ex parte motion,

concluding, without citing any record support, that

Ahanchian, “apparently not pleased with the court’s ruling,”

had simply failed to file timely oppositions. The court construed Ahanchian’s September 5, 2008, ex parte application as

a Federal Rule of Civil Procedure 60(b) motion for reconsideration of its denial of Ahanchian’s August 29, 2008, request

for a one-week extension. The court then denied the motion,

3Ahanchian’s opposition to the Motion for Terminating Sanctions was

filed two days earlier, on September 3. 

4

In this application, Ahanchian’s counsel explained that his office had

made a calendaring error, and thus he erroneously believed that the oppositions were not due until September 4, 2008. The truth of this statement

is supported by counsel’s earlier application seeking an extension of the

deadlines, which represented that “Plaintiff’s opposition papers are currently due on September 4, 2008.” Neither defense counsel nor the court

chose to alert counsel that he had misstated the deadline, adding two days.

Counsel also explained he attempted to meet that erroneously-calculated

deadline but “due to technical computer circumstances beyond control,”

he could not file until September 5. 

18142 AHANCHIAN v. XENON PICTURES, INC.
citing three authorities: (1) a Fifth Circuit decision concluding

that the “inadvertent mistake” of counsel was not a sufficient

ground to excuse missing a filing deadline; (2) a Sixth Circuit

decision rejecting “calendaring errors” as justification for

reconsideration; and (3), finally, an inapposite Ninth Circuit

decision that suggests a party should sue its lawyer for malpractice rather than bring a Rule 60(b)(1) motion when it

comes to regret an action based on erroneous legal advice. 

Meanwhile, in its summary judgment order, the court correctly observed that Ninth Circuit precedent bars district

courts from granting summary judgment simply because a

party fails to file an opposition or violates a local rule, and

also correctly cited its obligation to analyze the record to

determine whether any disputed material fact was present. It

then effectively flouted both legal principles,5 stating that it

had reviewed only the defense evidence, even though it knew

the opposition papers were already filed, having ruled upon

the accompanying motion for a late filing. Unsurprisingly,

based on only defendants’ version of the facts, the court concluded that defendants were not liable on any claim and

granted judgment in their favor.

Ahanchian timely appeals the district court’s procedural

rulings, the grant of summary judgment, and the award of

attorneys’ fees.

II. STANDARD OF REVIEW

The district court’s denial of an extension of time pursuant

to Federal Rule of Civil Procedure 6(b) is reviewed for abuse

of discretion, see Kyle v. Campbell Soup Co., 28 F.3d 928,

5For example, even without considering the late-filed opposition papers,

the record then before the district court included the certificates of copyright registration, which are prima facie evidence of ownership and which

should have precluded an award of summary judgment on Ahanchian’s

copyright claims. 

AHANCHIAN v. XENON PICTURES, INC. 18143
930 (9th Cir. 1994), as is a court’s denial of a Rule 60(b)

motion, see United States v. Asarco Inc., 430 F.3d 972, 978

(9th Cir. 2005). Accordingly, we reverse where the district

court applied the incorrect legal rule or where the district

court’s application of the law to the facts was: (1) illogical;

(2) implausible; or (3) without support in inferences that may

be drawn from the record. United States v. Hinkson, 585 F.3d

1247, 1262 (9th Cir. 2009) (en banc).

III. DISCUSSION

Ahanchian argues that the district court abused its discretion first in denying his request for a one-week extension of

time to file his opposition to defendants’ summary judgment

motion and then in denying his application to file that opposition late. We agree. 

A.

[1] Federal Rule of Civil Procedure 6(b)(1) provides:

(1) In General. When an act may or must be done

within a specified time, the court may, for good

cause, extend the time: 

(A) with or without motion or notice if the

court acts, or if a request is made, before

the original time or its extension expires; or

(B) on motion made after the time has

expired if the party failed to act because of

excusable neglect.

Fed. R. Civ. P. 6(b)(1). This rule, like all the Federal Rules

of Civil Procedure, “[is] to be liberally construed to effectuate

the general purpose of seeing that cases are tried on the merits.” Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983)

(quoting Staren v. American Nat’l Bank & Trust Co. of Chi18144 AHANCHIAN v. XENON PICTURES, INC.
cago, 529 F.2d 1257, 1263 (7th Cir. 1976)); see also Fed. R.

Civ. P. 1 (“[The Federal Rules] should be construed and

administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”). Consequently,

requests for extensions of time made before the applicable

deadline has passed should “normally . . . be granted in the

absence of bad faith or prejudice to the adverse party.” 4B

Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure § 1165 (3d ed. 2004). 

[2] The circumstances of Ahanchian’s predicament clearly

demonstrate the “good cause” required by Rule 6(b)(1).

“Good cause” is a non-rigorous standard that has been construed broadly across procedural and statutory contexts. See,

e.g., Venegas-Hernandez v. Sonolux Records, 370 F.3d 183,

187 (1st Cir. 2004); Thomas v. Brennan, 961 F.2d 612, 619

(7th Cir. 1992); Lolatchy v. Arthur Murray, Inc., 816 F.2d

951, 954 (4th Cir. 1987). To begin with, Ahanchian faced an

exceptionally constrained deadline resulting from the peculiar

dictates of the local rules for the Central District of California.6

6Like the rules in several districts in this circuit, the Central District

Local Rules establish deadlines for filing motions and oppositions by

counting backwards from an established hearing date. In 2008, Central

District of California Local Rule 6-1 provided that any motion had to be

filed “not later than twenty-one (21) days before the date set for hearing.”

C.D. Cal. Local R. 6-1 (2008). Similarly, Central District Local Rule 7-9

governed the filing of oppositions and provided that any opposition had

to be filed “not later than fourteen (14) days before the date designated for

the hearing of the motion.” C.D. Cal. Local R. 7-9 (2008). As a result,

where the movant chose to file a motion twenty-one days before the

hearing—the last day allowed by local rules—the nonmovant has a mere

seven days to file an opposition. This abbreviated timeline is unusual;

every other district in this circuit guarantees nonmovants at least fourteen

days to file an opposition to a motion. See D. Ariz. Local R. 56.1(d); D.

Alaska Local R. 7.1(e); E.D. Cal. Local R. 78-230(b); N.D. Cal. Local R.

7-2(a), 7-3(a); S.D. Cal. Local R. 7.1(e)(1), (2); D. Guam Local R. 7.1(d);

D. Hawaii Local R. 7.2(a), 7.4; D. Idaho Local R. 7.1(c); D. Mont. Local

R. 7.1(d)(1)(B); D. Nevada Local R. 7.2(b); D. N. Mariana Islands Local

R. 7.1(c)(2); D. Oregon Local R. 7.1(f); E.D. Wash. Local R. 7.1(c); W.D.

Wash. Local R. 7(d)(3). 

AHANCHIAN v. XENON PICTURES, INC. 18145
Compounding the problem, this deadline followed immediately upon Labor Day weekend—during which even the federal courts are closed. By taking advantage of the unusual

local rules, defendants cut Ahanchian’s time to respond to two

dispositive motions to five business days and three days over

the holiday weekend. See Fed. R. Civ. P. 6(a)(1)(C). As was

certainly neither unreasonable nor unexpected, both

Ahanchian and his attorney were out of town over Labor Day

weekend, and, moreover, as he informed the district court,

Ahanchian’s lead counsel was out-of-state in fulfillment of a

previously-scheduled commitment from the day defendants

chose to file their motions through the day the responses were

due.7

[3] Critically, the record is devoid of any indication either

that Ahanchian’s counsel acted in bad faith or that an extension of time would prejudice defendants. To the contrary, the

record reflects that Ahanchian’s counsel acted conscientiously

throughout the litigation, promptly seeking extensions of time

when necessary and stipulating to defendants’ earlier request

for an extension of time to file their answer and to the twelveweek extension due to two defendants’ late appearances.

Moreover, defendants’ argument that they would be prejudiced by only having a week to reply while Ahanchian would

7Even without the revelation that Ahanchian’s lead counsel’s absence

was due to his position as an elected delegate to a major political party’s

national convention, his lack of availability due to a previously planned

trip is a reasonable basis for seeking an extension of time. As Supreme

Court Justice David Brewer once recognized, attorneys have an obligation

as professionals to assume positions of important social responsibility. See

David J. Brewer, The Ideal Lawyer, Atlantic Monthly, November 1906, at

587, 598 (“[T]he true lawyer never forgets the obligations which he as a

lawyer owes to the republic, . . . he always remembers that he is a citizen.”). Moreover, attorneys, like everyone else, have critical personal and

familial obligations that are particularly acute during holidays. It is important to the health of the legal profession that attorneys strike a balance

between these competing demands on their time. See Patrick J. Schiltz, On

Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy,

and Unethical Profession, 52 Vand. L. Rev. 871, 889-90 (1999). 

18146 AHANCHIAN v. XENON PICTURES, INC.
have had several weeks to draft an opposition is unpersuasive

and neglects the fact that in the overwhelming majority of districts, more time is given for drafting oppositions than for

drafting replies. See, e.g., N.D. Cal. Local R. 7-3(a), (c); S.D.

Cal. Local R. 7.1(e)(1), (2). Had the district court had any

doubts about the veracity or good faith of Ahanchian’s counsel, or been worried about prospective prejudice, it could have

held an evidentiary hearing or sought more information;

instead, without support in the record, it summarily denied

Ahanchian’s request.

[4] The record shows that Ahanchian’s requested relief

was reasonable, justified, and would not result in prejudice to

any party. The district court nevertheless denied Ahanchian’s

motion, thus effectively dooming Ahanchian’s case on the

impermissible ground that he had violated a local rule.

Because Ahanchian clearly demonstrated the “good cause”

required by Rule 6, and because there was no reason to

believe that Ahanchian was acting in bad faith or was misrepresenting his reasons for asking for the extension, the district

court abused its discretion in denying Ahanchian’s timely

motion.

B.

We next turn to the district court’s denial of Ahanchian’s

September 5, 2008, ex parte application to allow his late-filed

opposition, which the court construed as a Rule 60(b) motion

for reconsideration of its denial of Ahanchian’s Rule 6 motion

for an extension. Rule 60(b) provides that a court “may

relieve a party or its legal representative from a final judgment, order, or proceeding” on the basis of “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b).

The court denied Ahanchian’s application after concluding

that Ahanchian had not demonstrated “excusable neglect.” In

so doing, however, the district court failed to cite the correct

AHANCHIAN v. XENON PICTURES, INC. 18147
legal standard, applying an incorrect legal standard for deciding Rule 60(b) motions.8

[5] To determine whether a party’s failure to meet a deadline constitutes “excusable neglect,” courts must apply a fourfactor equitable test, examining: (1) the danger of prejudice to

the 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. Pioneer Inv.

Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,

395 (1993); Briones v. Riviera Hotel & Casino, 116 F.3d 379,

381 (9th Cir. 1997) (adopting this test for consideration of

Rule 60(b) motions). Through other decisions, including

Bateman v. U.S. Postal Serv., 231 F.3d 1220 (9th Cir. 2000),

and Pincay v. Andrews, 389 F.3d 853 (9th Cir. 2004) (en

banc), we have further clarified how courts should apply this

test. 

[6] In Bateman, we concluded that when considering a

Rule 60(b) motion a district court abuses its discretion by failing to engage in the four-factor Pioneer/Briones equitable balancing test. Bateman, 231 F.3d at 1223-24. Bateman’s

counsel had left the country before filing an opposition to the

Postal Service’s summary judgment motion, allowed the

8Defendants assert that Ahanchian waived this argument because he did

not state in his application that he was relying on the “excusable neglect”

standard or cite Rule 60(b). Defendants are correct that a party will be

deemed to have waived any issue or argument not raised before the district

court. Ritchie v. United States, 451 F.3d 1019, 1026 n.12 (9th Cir. 2006).

However, this general rule “does not apply where the district court nevertheless addressed the merits of the issue” not explicitly raised by the party.

Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 707 (D.C. Cir.

2009); see also Citizens United v. F.E.C., 130 S. Ct. 876, 888 (2010).

Here, despite Ahanchian’s understandable failure to explicitly reference

the excusable neglect standard in what he thought was a motion for late

filing, and not a Rule 60(b) motion, the district court chose to construe his

application as one brought pursuant to Rule 60 and purported to apply the

excusable neglect standard. Ahanchian did not waive his argument that the

district court abused its discretion in its application of Rule 60. 

18148 AHANCHIAN v. XENON PICTURES, INC.
deadline to pass while abroad, failed to file any motions for

extensions of time, and failed to contact the district court for

sixteen days after he returned because of “jet lag and the time

it took to sort through the mail.” Id. at 1223. Because the district court had already awarded summary judgment to the

Postal Service, Bateman moved to set aside the judgment pursuant to Rule 60(b). Id. The district court, without mentioning

the Pioneer/Briones test, denied the motion after considering

only facts relating to the reason for Bateman’s delay—the

third Pioneer/Briones factor. Id. at 1224. We concluded that

the district court had failed to engage in the equitable analysis

mandated by Pioneer and Briones, and, by ignoring three of

the four Pioneer/Briones factors, had abused its discretion in

denying Bateman’s Rule 60(b) motion. Id.; see also Lemoge

v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009) (“We

conclude that the district court did not identify the PioneerBriones standard or correctly conduct the Pioneer-Briones

analysis and that this was an abuse of discretion.”).

[7] In Pincay, we held that courts engaged in balancing the

Pioneer/Briones factors may not apply per se rules. Pincay,

389 F.3d at 855 (“We now hold that per se rules are not consistent with Pioneer.”). Defendants, who had filed their notice

of appeal twenty-four days late, asserted that their tardy filing

resulted from a calendaring mistake caused by attorneys and

paralegals misapplying a clear legal rule. See id. Applying the

same four-factor balancing test as required under Federal Rule

of Civil Procedure 60(b), the district court found that defendants’ neglect was excusable under Federal Rule of Appellate

Procedure 4(a)(5). See id. Sitting en banc, we rejected the

plaintiffs’ contention that the district court had abused its discretion in ruling for defendants. We concluded that, while the

calendaring mistake was not a “compelling excuse,” because

of the “nature of the contextual analysis and the balancing of

the factors adopted in Pioneer,” courts applying the Pioneer/Briones test cannot create or apply any “rigid legal rule

against late filings attributable to any particular type of negligence.” Id. at 860.

AHANCHIAN v. XENON PICTURES, INC. 18149
[8] The district court’s failure to apply Ninth Circuit precedent, particularly the rules set forth in Bateman and Pincay,

to Ahanchian’s Rule 60(b) motion was error. Just like the district court in Bateman, the district court here neither cited nor

applied the Pioneer/Briones test, but instead based its decision solely on whether the reason for the delay—the third Pioneer/Briones factor—could establish excusable neglect. By

ignoring the other three factors, the district court abused its

discretion. See Bateman, 231 F.3d at 1224. The district court

then compounded its legal error by concluding that “a calendaring mistake is the type of ‘inadvertent mistake’ that is not

entitled to relief pursuant to Rule 60(b)(1),” impermissibly

adopting a per se rule in applying the Pioneer/Briones balancing test. See Pincay, 389 F.3d at 859-60. 

The district court’s errors are particularly troublesome

because our application of the correct equitable analysis convinces us that Ahanchian’s delay was the result of excusable

neglect. See Bateman, 231 F.3d at 1224 & n.3. We start by

recognizing that “Rule 60(b) is ‘remedial in nature and . . .

must be liberally applied.’ ” TCI Group Life Ins. v. Knoebber,

244 F.3d 691, 696 (9th Cir. 2001) (quoting Falk v. Allen, 739

F.2d 461, 463 (9th Cir. 1984)). With this standard in mind, we

conclude that all four Pioneer/Briones factors favor

Ahanchian. First, the defendants would not have been prejudiced by a week’s delay in the filing of the opposition and a

concomitant week extension to file a reply. At most, they

would have won a quick but unmerited victory, the loss of

which we do not consider prejudicial. Cf. Bateman, 231 F.3d

at 1225 (finding insufficient prejudice where defendants

“would have lost a quick victory and, should it ultimately

have lost the summary judgment motion . . . would have to

reschedule the trial date”). Second, the length of the delay was

a mere three days; filing the opposition then would not have

adversely affected either the summary judgment hearing date,

which was ten days away, or the trial, which was two and a

half months away. Compare id. (finding a delay of over a

month “not long enough to justify denying relief”). Third,

18150 AHANCHIAN v. XENON PICTURES, INC.
while a calendaring mistake caused by the failure to apply a

clear local rule may be a weak justification for an attorney’s

delay, we have previously found the identical mistake to be

excusable neglect. See, e.g., Pincay, 389 F.3d at 860. In fact,

in Bateman, the attorney’s reasons for his nearly month-long

delay, the need to recover from jet lag and to review mail,

were far less persuasive. Yet, we concluded that excusable

neglect was established. Bateman, 231 F.3d at 1225. Fourth,

there is no indication that Ahanchian’s failure to file the opposition on time was the result of bad faith. Ahanchian’s counsel

displayed his (mistaken) belief that the oppositions were due

on September 4, 2008, in his initial request for an extension

of time. Thus, his reliance on the calendaring mistake was not

a bad-faith, post-hoc rationalization concocted to secure additional time. Ahanchian’s counsel had no history of missing

deadlines or disobeying the district court’s orders; in fact, he

demonstrated a sensitivity to the court’s orders and deadlines

by promptly seeking extensions of time where necessary. We

have found good faith in situations where attorneys acted far

less diligently and conscientiously. See id. (“[Counsel]

showed a lack of regard for his client’s interests and the

court’s docket. But there is no evidence that he acted with

anything less than good faith.”).

[9] By failing to apply the Pioneer/Briones equitable balancing test and instead adopting an impermissible per se rule,

the district court abused its discretion. See Lemoge, 587 F.3d

at 1193 (citing Hinkson, 585 F.3d at 1261). Applying the correct legal standard, we conclude that Ahanchian’s counsel

sufficiently established that his failure to timely file the opposition to summary judgment was the result of excusable

neglect, and that the motion to allow the late opposition

should have been granted. 

C.

[10] Perhaps contributing to the district court’s errors and

certainly compounding the harshness of its rulings, defense

AHANCHIAN v. XENON PICTURES, INC. 18151
counsel disavowed any nod to professional courtesy, instead

engaging in hardball tactics designed to avoid resolution of

the merits of this case. We feel compelled to address defense

counsel’s unrelenting opposition to Ahanchian’s counsel’s

reasonable requests. Our adversarial system depends on the

principle that all sides to a dispute must be given the opportunity to fully advocate their views of the issues presented in a

case. See Indep. Towers of Wash. v. Washington, 350 F.3d

925, 929 (9th Cir. 2003); Iva Ikuku Toguri D’Aquino v.

United States, 192 F.2d 338, 367 (9th Cir. 1951). Here,

defense counsel took knowing advantage of the constrained

time to respond created by the local rules, the three-day federal holiday, and Ahanchian’s lead counsel’s prescheduled

out-of-state obligation. Defense counsel steadfastly refused to

stipulate to an extension of time, and when Ahanchian’s counsel sought relief from the court, defense counsel filed fierce

oppositions, even accusing Ahanchian’s counsel of unethical

conduct. Such uncompromising behavior is not only inconsistent with general principles of professional conduct, but also

undermines the truth-seeking function of our adversarial system. See Cal. Attorney Guidelines of Civility & Professionalism § 1 (“The dignity, decorum and courtesy that have

traditionally characterized the courts and legal profession of

civilized nations are not empty formalities. They are essential

to an atmosphere that promotes justice and to an attorney’s

responsibility for the fair and impartial administration of justice.”); see also Marcangelo v. Boardwalk Regency, 47 F.3d

88, 90 (3d Cir. 1995) (“We do not approve of the ‘hardball’

tactics unfortunately used by some law firms today. The

extension of normal courtesies and exercise of civility expedite litigation and are of substantial benefit to the administration of justice.”).

[11] Our adversarial system relies on attorneys to treat

each other with a high degree of civility and respect. See

Bateman, 231 F.3d at 1223 n.2 (“[A]t the risk of sounding

naive or nostalgic, we lament the decline of collegiality and

fair-dealing in the legal profession today, and believe courts

18152 AHANCHIAN v. XENON PICTURES, INC.
should do what they can to emphasize these values.”); Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th Cir.

1997) (“There is no better guide to professional courtesy than

the golden rule: you should treat opposing counsel the way

you yourself would like to be treated.”). Where, as here, there

is no indication of bad faith, prejudice, or undue delay, attorneys should not oppose reasonable requests for extensions of

time brought by their adversaries. See Cal. Attorney Guidelines of Civility & Prof. § 6.

CONCLUSION

The district court abused its discretion in denying Ahanchian’s request for a one-week extension to file his opposition

and erred in denying Ahanchian’s motion to allow a three-day

late-filed opposition it construed as a Rule 60(b) motion.9

Accordingly, we REVERSE the district court’s grant of summary judgment, vacate the district court’s award of attorneys’

fees, and REMAND this case for further proceedings.

9The district court also stated in a footnote that the denial was, in the

alternative, based on a lack of good cause. This conclusion was also an

abuse of discretion, as the above discussion demonstrates. 

AHANCHIAN v. XENON PICTURES, INC. 18153