DiPietro v. Hutchinson et al

Filing 57

ORDER granting in part and denying in part 47 Motion to Strike. Signed by Judge David G Campbell on 7/25/2014.(DGC, nvo)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael DiPietro,

No. CV-14-00502-PHX-DGC
Petitioner,

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v.

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ORDER

Martina Hutchinson, et al.,

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Respondents.

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Respondent First Allied Securities Inc. (“First Allied”) has filed a motion to strike

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the Amended Petition for Declaratory Relief and to Vacate or Modify Arbitration.

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Doc. 47. The motion is fully briefed and no party has requested oral argument. The

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Court will grant the motion in part and deny it in part.

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Petitioner Michael DiPietro filed a 30-page petition on March 12, 2014, seeking

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declaratory relief and vacature or modification of an arbitration award.

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Petitioner simultaneously filed a motion requesting permission to “exceed by ten pages

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the presumptive 17-page limit” for his petition. Doc. 8. On March 18, 2014, the Court

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granted Petitioner’s motion in part and permitted him to file a petition of 25 pages.

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Doc. 11. Petitioner did not file the revised petition until three months later. Doc. 35. In

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the amended petition, Petitioner asserts factual allegations in support of his legal

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arguments that did not appear in his original petition, namely the unavailability of key

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witnesses due to the Arizona venue (Doc. 35 at 16: 15-16; 16: 25-26; 23: 22-23; 24: 2-3).

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Petitioner filed the amended petition long after the 21-day window for amendment

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as a matter of course had closed (Fed. R. Civ. P. 15(a)(1)), and the Court’s order granting

Doc. 1.

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additional pages (which were fewer than the original petition) did not authorize him to

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amend his petition with new factual allegations (see Doc. 11). Petitioner should have

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complied with Rule 15(a)(2) and Local Rules 15.1(a) and (b) if he wished to amend his

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petition. The Court will strike the new facts regarding witness availability from the

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petition (Doc. 35 at 16: 15-16; 16: 25-26; 23: 22-23; 24: 2-3). The rest of the amended

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petition will remain.

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IT IS ORDERED that First Allied’s motion to strike (Doc. 47) is granted in part
and denied in part as set forth above.
Dated this 25th day of July, 2014.

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