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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,

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Plaintiff,

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ORDER

vs.

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No. CV10-2358-PHX-DGC

Robert F. Smith,

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Defendant.

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On August 17, 2011, pro se Defendant Robert F. Smith filed a motion to strike

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four certificates of tax assessments against him for the years 1999-2002 on the basis that

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they were not properly certified. Doc. 36. These certificates were submitted by Plaintiff

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as exhibits in its response to Mr. Smith’s February 16, 2011, motion to dismiss. See

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Doc. 15, Exhibits B-E, Doc. 14. The motion has been fully briefed. Docs. 37, 38. For

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the reasons stated below, the Court will deny the motion as moot.

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Motions to Strike under Rule 12(f) are to be filed “either before responding to the

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pleading or, if a response is not allowed, within 21 days after being served with the

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pleading.” Fed. R. Ev. 12(f). Additionally, Local Rule 7.2(m) provides that “[a]n

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objection to the admission of evidence . . . must be presented in the objecting party's

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responsive or reply memorandum . . . and not in a separate motion to strike or other

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separate filing.” LRCiv 7.2(m)(2). Mr. Smith did not raise an objection to Plaintiff’s

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exhibits either in his reply or within 21 days of receiving Plaintiff’s response to his

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motion to dismiss. See Doc. 18. Moreover, Mr. Smith’s motion is moot because he did

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not file it until nearly five months after the Court had already denied his motion to

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dismiss. See Doc. 19. The Court has no basis to strike the attachments from pleadings

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that it has already ruled upon.

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To the extent that Mr. Smith suggests that his motion is really an “Objection to the

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Admission of Exhibits” (Doc. 38 at 6), the Court advises Mr. Smith that attachment of

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exhibits to the response says nothing about whether they later will be admissible on

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summary judgment or at trial. Mr. Smith will have an opportunity to object to the

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admissibility of the exhibits if they are used at that time.

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IT IS ORDERED that Defendant’s motion to strike (Doc. 36) is denied.

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Dated this 3rd day of November, 2011.

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