                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             JUN 28 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
GARY ATKINS,                                     No. 14-56087

              Plaintiff - Appellant,             D.C. No. 3:12-cv-01390-GPC-
                                                 WVG
 v.

RAYMOND E MABUS, Jr., Secretary,                 MEMORANDUM*
Department of the Navy,

              Defendant - Appellee.


                    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


        *
             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.
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.


                                          3
      Accordingly, we REVERSE and REMAND with instructions that the

district court reopen discovery for a reasonable period of time.




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