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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Energy Solutions, Inc.; Law Office of)
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James R. Vaughn, P.C.,
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Defendants.
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Rachel Benson,
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No. CV-13-2201-PHX-LOA
ORDER

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This action arises on Plaintiff’s Motion to Strike Defendants’ Motion to Dismiss the
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Complaint, filed on April 21, 2014. (Doc. 37) Pending for ruling is Defendants’ Motion to
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Dismiss the Complaint, filed pursuant to Rules 12(b)(1), 12(b)(5), and 12(b)(6) of the
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Federal Rules of Civil Procedure. (Doc. 22) In her Motion to Strike, Plaintiff contends that
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Defendants’ dismissal motion 1) exceeds the page limit prohibition set forth in the Rules of
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Practice for the District Court of Arizona (“Local Rules” or “LRCiv”), viz., LRCiv 7.2 (e);
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2) fails to reference a memorandum of points and authorities as allegedly required by LRCiv
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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
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4) contains sections that are redundant and discloses immaterial and inadmissible settlement
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discussions. (Id.) Plaintiff’s Motion is without merit and will be denied.
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I. Local Rule Violations
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Plaintiff writes that “[l]ocal rule 7.2 (e) mandates that motions, excluding a statement
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of facts and attachments[,] are not to exceed seventeen (17) pages.” (Doc. 37 at 2)
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“Excluding the attachments, Defendants’ motion violates the page limit prohibition and must
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be struck in its entirety.”1 (Id.) Plaintiff also claims that “LRCiv 7.1(a)(3) requires mention

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of a memorandum of points and authorities, which Defendants failed to include.”2 (Id.)

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According to Defendants, “Plaintiff is wrong on all counts[.]” (Doc. 39 at 2)

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Defendants’ motion consists of seventeen pages of substantive text, including counsel’s

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electronic signature at the bottom of page seventeen, as required by Rule 11(a),

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Fed.R.Civ.P., and LRCiv 5.5(a). “The only text on the final [eighteenth] page of Defendants’

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Motion [i]s a certificate of service indicating that the motion had been filed with the Court

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and mailed to Plaintiff.” (Id. at 4) The certification information on the eighteenth page is

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required by Rule 5(d)(1), Fed.R.Civ.P.; has nothing to do with the substantive merits of the

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motion; and everything to do with who was e-mailed a copy of the motion.

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Defendants also point out that their dismissal motion “[i]ncluded the Memorandum

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of Points and Authorities - and mentioned it on the second page - but failed to mention it in

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the caption of Defendants’ Motion[,]” citing LRCiv. 7.1(a)(3)). (Id.) Even if this were a

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technical violation by omission, Defendants correctly note that the “Local Rules, allow, but

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do not require, this Court to strike Defendants’ Motion because of this oversight.” See

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LRCiv. 7.1(d)(5). (Id.)

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Upon the Court’s review, Defendants’ Motion to Dismiss the Complaint contains 17

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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).
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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.
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pages of substantive text, arguments, and citations to numerous legal authorities. The

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eighteenth page contains nothing except the names and addresses of adverse counsel, the

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United States District Court, and the undersigned Magistrate Judge. Clearly, the eighteenth

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page, the page that Plaintiff claims puts Defendants’ motion over the 17-page limit and

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allegedly violates the Local Rules, has nothing to do with advancing Defendants’ motion,

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and is a technical, but important, requirement of the Federal Rules of Civil Procedure and

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due process of law. A certification page is much like an attachment and common sense

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dictates that it does not count towards LRCiv 7.2(e)’s 17-page limit. Additionally, in the

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middle of the second page of Defendants’ motion in bold print is “Memorandum of Points

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and Authorities.” (Doc. 22 at 2) Even if the Local Rules required the word “Memorandum”

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be inserted to the right of the caption to make plain what is already obvious in the motion,

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Defendants have included this bolded language in a prominent location in their motion. What

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is important is that every motion contain “points and authorities relied upon in support of the

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motion” to eliminate any guesswork as to the legal basis upon which the motion is based. See

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LRCiv 7.2(b), (c). Defendants’ Motion to Dismiss Complaint substantially complies with

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the District Court’s Local Rules. Plaintiff’s hyper-technical arguments that Defendants’

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Motion to Dismiss the Complaint are a waste of the Court’s time to consider and are

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summarily rejected.

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II. The Scope of Rules 12(b)(1), 12(b)(5) and 12(b)(6)

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According to Plaintiff, “[s]andwiched in between Sections II and VIII [of their

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motion], Defendants, attempting to argue the entire case, inexplicably took liberties arguing

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extraneous matters that are beyond the scope of its moving authority and as such, these

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extraneous matters are not properly before the court.” (Doc. 37 at 2) Plaintiff does not

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specify what “extraneous matters” should be stricken. The Court will not guess at what

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Plaintiff wants stricken as extraneous, but assures Plaintiff that the Court will only consider

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those relevant facts, attachments, and arguments that may be lawfully considered on the

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pending dispositive motion, and will ignore that which is extraneous.

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III. Redundant, Immaterial and Inadmissible Evidence

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Plaintiff contends that Section IV of Defendants’ motion repeats the contentions in

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Sections I and II. (Doc. 37 at 3) Section IV is titled “The State Law Claims are Not

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Properly Before this Court” and Sections I and II are titled “This Court Lacks Subject

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Matter Jurisdiction Over the Complaint” and “The Complaint Also Fails to State a

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Claim for Relief,” respectively. (Doc. 22 at 2, 4, and 9) (emphasis in original). Assuming

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there is overlap and redundancy in Defendants’ motion, Plaintiff does not explain how she

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is prejudiced by it. If Plaintiff has fully responded to an issue repeated by Defendants in their

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motion, she needed to do so only once. This argument to strike the entire motion is

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summarily rejected.

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Lastly, Plaintiff complains the Defendants included in their motion immaterial and

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inadmissible settlement discussions and “moves the Court to strike any mention of

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settlement, as this is clearly improper. . . [and to] strike Defendants’ motion and order

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Defendants’ and each of them to answer the complaint.” (Doc. 37 at 3) Plaintiff does not

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quote the offending discussions or even direct the Court where to find them.

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In their response, Defendants claim that settlement discussions were included in the

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motion because they “are material to the emotional damages alleged by Plaintiff.” (Doc. 39

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at 7) Citing Rule 408(b), Fed.R.Evid., Defendants indicate they “summarized the settlement

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discussions - without disclosing their exact content - to show that they had no notice of

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Plaintiff’s alleged emotional distress despite negotiating with her counsel for some time.”

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(Id.)

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The Court fails to see how any discussion on settlement between counsel is ever

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relevant in deciding a dispositive motion as a matter of law, especially where a district court

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does not weigh or make credibility findings in such motions. Nevertheless, the Court

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declines Plaintiff’s invitation to spend the time to search through Defendants’ 17-page

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motion to discern where the settlement remarks are located or strike the entire dispositive

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motion because Defendants included in the motion irrelevant and conclusory non-prejudicial

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statements regarding settlement. The Court will note, however, that to the extent there are
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such statements in Defendants’ motion, they will be disregarded by the Court and will have

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no bearing on the Court’s ultimate ruling.

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In light of the escalating tenor of both counsels’ comments about each other, all

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counsel in this action are reminded that the privilege of practicing law in the District Court

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of Arizona is conditioned upon full compliance with the Arizona Rules of Professional

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Conduct and the Standards for Professional Conduct adopted and enforced by the District

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Court. See Roosevelt Irr. Dist. v. Salt River Project Agr. Imp. and Power Dist., 810

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F.Supp.2d 929, 944 (D. Ariz. 2011) (“The United States District Court for the District of

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Arizona has adopted the Arizona Rules of Professional Conduct as its ethical standards.”)

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(citing LRCiv 83.2(e)); Brinks’ Home Security, Inc. v. Caliber Holdings Co., LLC, 2007 WL

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778419, at *3 (D. Ariz. March 12, 2007) (“Counsel are also reminded of certification to

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comply with the Standards of Professional Conduct with their admission to practice in this

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District Court.”). All counsel herein have certified that they will comply with, inter alia, the

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Standards of Professional Conduct. The Standards of Professional Conduct are located on

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the District Court’s website, www.azd.uscourts.gov, and may be located by clicking on the

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link “for Attorneys,” and then clicking on the link “Attorney Admissions Information.

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Based on the foregoing,

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IT IS ORDERED that Plaintiff’s Motion to Strike Defendants’ Motion to Dismiss

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the Complaint, doc. 37, is DENIED.
Dated this 19th day of June, 2014.

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