United States of America v. Smith

Filing 48

ORDER denying 36 Defendant's Motion to Strike. Signed by Judge David G Campbell on 11/3/11.(LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 United States of America, 10 Plaintiff, 11 ORDER vs. 12 No. CV10-2358-PHX-DGC Robert F. Smith, 13 Defendant. 14 15 On August 17, 2011, pro se Defendant Robert F. Smith filed a motion to strike 16 four certificates of tax assessments against him for the years 1999-2002 on the basis that 17 they were not properly certified. Doc. 36. These certificates were submitted by Plaintiff 18 as exhibits in its response to Mr. Smith’s February 16, 2011, motion to dismiss. See 19 Doc. 15, Exhibits B-E, Doc. 14. The motion has been fully briefed. Docs. 37, 38. For 20 the reasons stated below, the Court will deny the motion as moot. 21 Motions to Strike under Rule 12(f) are to be filed “either before responding to the 22 pleading or, if a response is not allowed, within 21 days after being served with the 23 pleading.” Fed. R. Ev. 12(f). Additionally, Local Rule 7.2(m) provides that “[a]n 24 objection to the admission of evidence . . . must be presented in the objecting party's 25 responsive or reply memorandum . . . and not in a separate motion to strike or other 26 separate filing.” LRCiv 7.2(m)(2). Mr. Smith did not raise an objection to Plaintiff’s 27 exhibits either in his reply or within 21 days of receiving Plaintiff’s response to his 28 1 motion to dismiss. See Doc. 18. Moreover, Mr. Smith’s motion is moot because he did 2 not file it until nearly five months after the Court had already denied his motion to 3 dismiss. See Doc. 19. The Court has no basis to strike the attachments from pleadings 4 that it has already ruled upon. 5 To the extent that Mr. Smith suggests that his motion is really an “Objection to the 6 Admission of Exhibits” (Doc. 38 at 6), the Court advises Mr. Smith that attachment of 7 exhibits to the response says nothing about whether they later will be admissible on 8 summary judgment or at trial. Mr. Smith will have an opportunity to object to the 9 admissibility of the exhibits if they are used at that time. 10 IT IS ORDERED that Defendant’s motion to strike (Doc. 36) is denied. 11 Dated this 3rd day of November, 2011. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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