Benson v. Energy Solutions Incorporated et al

Filing 43

ORDER that Plaintiff's 37 Motion to Strike Defendants' Motion to Dismiss the Complaint is DENIED. Signed by Magistrate Judge Lawrence O Anderson on 6/19/2014.(LFIG)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 ) ) ) Plaintiff, ) ) vs. ) Energy Solutions, Inc.; Law Office of) ) James R. Vaughn, P.C., ) ) Defendants. ) Rachel Benson, 9 10 11 12 13 No. CV-13-2201-PHX-LOA ORDER 14 This action arises on Plaintiff’s Motion to Strike Defendants’ Motion to Dismiss the 15 Complaint, filed on April 21, 2014. (Doc. 37) Pending for ruling is Defendants’ Motion to 16 Dismiss the Complaint, filed pursuant to Rules 12(b)(1), 12(b)(5), and 12(b)(6) of the 17 Federal Rules of Civil Procedure. (Doc. 22) In her Motion to Strike, Plaintiff contends that 18 Defendants’ dismissal motion 1) exceeds the page limit prohibition set forth in the Rules of 19 Practice for the District Court of Arizona (“Local Rules” or “LRCiv”), viz., LRCiv 7.2 (e); 20 2) fails to reference a memorandum of points and authorities as allegedly required by LRCiv 21 7.1(a)(3); 3) exceeds the scope of Rules 12(b)(1), 12(b)(5) and 12(b)(6), Fed.R.Civ.P.; and 22 4) contains sections that are redundant and discloses immaterial and inadmissible settlement 23 discussions. (Id.) Plaintiff’s Motion is without merit and will be denied. 24 I. Local Rule Violations 25 Plaintiff writes that “[l]ocal rule 7.2 (e) mandates that motions, excluding a statement 26 of facts and attachments[,] are not to exceed seventeen (17) pages.” (Doc. 37 at 2) 27 “Excluding the attachments, Defendants’ motion violates the page limit prohibition and must 28 1 be struck in its entirety.”1 (Id.) Plaintiff also claims that “LRCiv 7.1(a)(3) requires mention 2 of a memorandum of points and authorities, which Defendants failed to include.”2 (Id.) 3 According to Defendants, “Plaintiff is wrong on all counts[.]” (Doc. 39 at 2) 4 Defendants’ motion consists of seventeen pages of substantive text, including counsel’s 5 electronic signature at the bottom of page seventeen, as required by Rule 11(a), 6 Fed.R.Civ.P., and LRCiv 5.5(a). “The only text on the final [eighteenth] page of Defendants’ 7 Motion [i]s a certificate of service indicating that the motion had been filed with the Court 8 and mailed to Plaintiff.” (Id. at 4) The certification information on the eighteenth page is 9 required by Rule 5(d)(1), Fed.R.Civ.P.; has nothing to do with the substantive merits of the 10 motion; and everything to do with who was e-mailed a copy of the motion. 11 Defendants also point out that their dismissal motion “[i]ncluded the Memorandum 12 of Points and Authorities - and mentioned it on the second page - but failed to mention it in 13 the caption of Defendants’ Motion[,]” citing LRCiv. 7.1(a)(3)). (Id.) Even if this were a 14 technical violation by omission, Defendants correctly note that the “Local Rules, allow, but 15 do not require, this Court to strike Defendants’ Motion because of this oversight.” See 16 LRCiv. 7.1(d)(5). (Id.) 17 Upon the Court’s review, Defendants’ Motion to Dismiss the Complaint contains 17 18 19 20 21 22 23 24 25 26 27 28 1 LRCiv 7.2(e)(1) provides as follows: (e) Length of Motions, Memoranda and Objections. (1) Unless otherwise permitted by the Court, a motion including its supporting memorandum, and the response including its supporting memorandum, may not exceed seventeen (17) pages, exclusive of attachments and any required statement of facts. (emphasis in original). 2 LRCiv 7.2(a)(3) provides, in pertinent part, as follows: [I]n the space to the right of the center there must be inserted . . . (B) a brief description of the nature of the document, including demand for trial by jury if made in the document; and (C) mention of any notice of motion or affidavits or memorandum in support. -2- 1 pages of substantive text, arguments, and citations to numerous legal authorities. The 2 eighteenth page contains nothing except the names and addresses of adverse counsel, the 3 United States District Court, and the undersigned Magistrate Judge. Clearly, the eighteenth 4 page, the page that Plaintiff claims puts Defendants’ motion over the 17-page limit and 5 allegedly violates the Local Rules, has nothing to do with advancing Defendants’ motion, 6 and is a technical, but important, requirement of the Federal Rules of Civil Procedure and 7 due process of law. A certification page is much like an attachment and common sense 8 dictates that it does not count towards LRCiv 7.2(e)’s 17-page limit. Additionally, in the 9 middle of the second page of Defendants’ motion in bold print is “Memorandum of Points 10 and Authorities.” (Doc. 22 at 2) Even if the Local Rules required the word “Memorandum” 11 be inserted to the right of the caption to make plain what is already obvious in the motion, 12 Defendants have included this bolded language in a prominent location in their motion. What 13 is important is that every motion contain “points and authorities relied upon in support of the 14 motion” to eliminate any guesswork as to the legal basis upon which the motion is based. See 15 LRCiv 7.2(b), (c). Defendants’ Motion to Dismiss Complaint substantially complies with 16 the District Court’s Local Rules. Plaintiff’s hyper-technical arguments that Defendants’ 17 Motion to Dismiss the Complaint are a waste of the Court’s time to consider and are 18 summarily rejected. 19 II. The Scope of Rules 12(b)(1), 12(b)(5) and 12(b)(6) 20 According to Plaintiff, “[s]andwiched in between Sections II and VIII [of their 21 motion], Defendants, attempting to argue the entire case, inexplicably took liberties arguing 22 extraneous matters that are beyond the scope of its moving authority and as such, these 23 extraneous matters are not properly before the court.” (Doc. 37 at 2) Plaintiff does not 24 specify what “extraneous matters” should be stricken. The Court will not guess at what 25 Plaintiff wants stricken as extraneous, but assures Plaintiff that the Court will only consider 26 those relevant facts, attachments, and arguments that may be lawfully considered on the 27 pending dispositive motion, and will ignore that which is extraneous. 28 -3- 1 III. Redundant, Immaterial and Inadmissible Evidence 2 Plaintiff contends that Section IV of Defendants’ motion repeats the contentions in 3 Sections I and II. (Doc. 37 at 3) Section IV is titled “The State Law Claims are Not 4 Properly Before this Court” and Sections I and II are titled “This Court Lacks Subject 5 Matter Jurisdiction Over the Complaint” and “The Complaint Also Fails to State a 6 Claim for Relief,” respectively. (Doc. 22 at 2, 4, and 9) (emphasis in original). Assuming 7 there is overlap and redundancy in Defendants’ motion, Plaintiff does not explain how she 8 is prejudiced by it. If Plaintiff has fully responded to an issue repeated by Defendants in their 9 motion, she needed to do so only once. This argument to strike the entire motion is 10 summarily rejected. 11 Lastly, Plaintiff complains the Defendants included in their motion immaterial and 12 inadmissible settlement discussions and “moves the Court to strike any mention of 13 settlement, as this is clearly improper. . . [and to] strike Defendants’ motion and order 14 Defendants’ and each of them to answer the complaint.” (Doc. 37 at 3) Plaintiff does not 15 quote the offending discussions or even direct the Court where to find them. 16 In their response, Defendants claim that settlement discussions were included in the 17 motion because they “are material to the emotional damages alleged by Plaintiff.” (Doc. 39 18 at 7) Citing Rule 408(b), Fed.R.Evid., Defendants indicate they “summarized the settlement 19 discussions - without disclosing their exact content - to show that they had no notice of 20 Plaintiff’s alleged emotional distress despite negotiating with her counsel for some time.” 21 (Id.) 22 The Court fails to see how any discussion on settlement between counsel is ever 23 relevant in deciding a dispositive motion as a matter of law, especially where a district court 24 does not weigh or make credibility findings in such motions. Nevertheless, the Court 25 declines Plaintiff’s invitation to spend the time to search through Defendants’ 17-page 26 motion to discern where the settlement remarks are located or strike the entire dispositive 27 motion because Defendants included in the motion irrelevant and conclusory non-prejudicial 28 statements regarding settlement. The Court will note, however, that to the extent there are -4- 1 such statements in Defendants’ motion, they will be disregarded by the Court and will have 2 no bearing on the Court’s ultimate ruling. 3 In light of the escalating tenor of both counsels’ comments about each other, all 4 counsel in this action are reminded that the privilege of practicing law in the District Court 5 of Arizona is conditioned upon full compliance with the Arizona Rules of Professional 6 Conduct and the Standards for Professional Conduct adopted and enforced by the District 7 Court. See Roosevelt Irr. Dist. v. Salt River Project Agr. Imp. and Power Dist., 810 8 F.Supp.2d 929, 944 (D. Ariz. 2011) (“The United States District Court for the District of 9 Arizona has adopted the Arizona Rules of Professional Conduct as its ethical standards.”) 10 (citing LRCiv 83.2(e)); Brinks’ Home Security, Inc. v. Caliber Holdings Co., LLC, 2007 WL 11 778419, at *3 (D. Ariz. March 12, 2007) (“Counsel are also reminded of certification to 12 comply with the Standards of Professional Conduct with their admission to practice in this 13 District Court.”). All counsel herein have certified that they will comply with, inter alia, the 14 Standards of Professional Conduct. The Standards of Professional Conduct are located on 15 the District Court’s website,, and may be located by clicking on the 16 link “for Attorneys,” and then clicking on the link “Attorney Admissions Information. 17 Based on the foregoing, 18 IT IS ORDERED that Plaintiff’s Motion to Strike Defendants’ Motion to Dismiss 19 20 the Complaint, doc. 37, is DENIED. Dated this 19th day of June, 2014. 21 22 23 24 25 26 27 28 -5-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?