Western Alliance Bank v. Jefferson

Filing 227

ORDER that Jefferson's motion to strike at docket 182 is GRANTED; Alliance's filing at docket 177 is hereby stricken. Further, the court will consider or disregard Jefferson's filing at docket 166 consistent with the authority discussed above. Signed by Judge John W Sedwick on 10/7/15.(KGM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Western Alliance Bank,

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Plaintiff,
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vs.
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Richard Jefferson,
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Defendant.
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Richard Jefferson,
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Counter-claimant,
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vs.
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Western Alliance Bank,
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Counter-defendant.
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Richard Jefferson,
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Third-party plaintiff,
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vs.
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Theodore Kritza & Michelle Lee
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Kritza,
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Third-party defendants. )
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2:14-cv-0761 JWS
ORDER AND OPINION
[Re: Motion at docket 182]

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I. MOTION PRESENTED

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At docket 182 defendant, counter-claimant, and third-party plaintiff Richard

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Jefferson (“Jefferson”) moves to strike the filing of plaintiff and counter-defendant

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Western Alliance Bank (“Alliance”) at docket 177. Alliance opposes at docket 189.

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Jefferson replies at docket 200. Oral argument was not requested and would not assist

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the court.

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II. STANDARD OF REVIEW

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Local Rule of Civil Procedure (“Local Rule”) 7.2(m) governs motions to strike. It
provides in pertinent part that a motion to strike may be filed “if it seeks to strike any

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part of a filing or submission on the ground that it is prohibited (or not authorized) by a

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statute, rule, or court order.” 1 The decision to grant or deny a motion to strike is within

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the court’s discretion. 2

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III. DISCUSSION
Alliance filed a motion for summary judgment3 supported by a fourteen-page,

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sixty-paragraph separate statement of facts (“SOF”).4 Jefferson filed an opposition to

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the motion5 supported by a 140-page document that contains his controverting

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statement of facts (“CSOF”) and additional statement of facts (“ASOF”).6 Alliance then

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filed a reply7 and a separate response to Jefferson’s CSOF and ASOF. 8 Alliance’s

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LRCiv 7.2(m)(1).

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Spencer v. Stapler, No. 04-1532 PHX SMM, 2006 WL 2052704, at *2 (D. Ariz. July 21,

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2006).
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Doc. 131.

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Doc. 134.

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Doc. 163.

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Doc. 166.
Doc. 174.
Doc. 177.

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separate response is the subject of Jefferson’s present motion to strike. In it, Alliance

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(1) objects to facts set out in Jefferson’s ASOF as being “repetitive;” (2) responds to

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facts set out in Jefferson’s ASOF that it concedes are not repetitive; and (3) responds to

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Jefferson’s evidentiary objections to its own SOF.9

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Jefferson argues that Alliance’s response is unauthorized by the Local Rules.

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He is correct. If the moving party wishes to respond to a non-moving party’s statement

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of facts or evidentiary objections, it may do so in its reply memorandum—not in a

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separate responsive memorandum.10 Because Alliance’s separate memorandum

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responds to Jefferson’s ASOF and the evidentiary objections in Jefferson’s CSOF, it is

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unauthorized and Jefferson’s motion to strike will be granted.
The court notes that Jefferson’s filing at docket 166 also violates the Local

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Rules. Local Rule 7.2 permits a non-moving party to include in its controverting

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statement of facts objections to the moving party’s statement of facts, but such

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objections “must be stated summarily without argument.”11 Argument belongs in the

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non-moving party’s opposition brief, within the page limit.12 Jefferson’s 103-page CSOF

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flaunts this rule; it is filled with objections accompanied by explanation and argument.

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Many of Jefferson’s objections span multiple pages.13 Jefferson’s arguments in support

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of his evidentiary objections are improper and will not be considered by the court.

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Doc. 177.

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See B2B CFO Partners, LLC v. Kaufman, 856 F. Supp. 2d 1084, 1086-87 (D. Ariz.
2012) (“The Local Rules do not contemplate . . . filing a separate response to the non-moving
party’s statement of facts. ”); LRCiv 7.2(m)(2) (“Any response to an objection must be included
in the responding party’s reply memorandum for the underlying motion and may not be
presented in a separate responsive memorandum.”).

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LRCiv 7.2(m)(2).
Marceau v. Int’l Bhd. of Elec. Workers, 618 F. Supp. 2d 1127, 1141 (D. Ariz. 2009).
See, e.g., Doc. 166. at 38-41, 71-75.

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IV. CONCLUSION
Based on the preceding discussion, Jefferson’s motion to strike at docket 182 is

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GRANTED; Alliance’s filing at docket 177 is hereby stricken. Further, the court will

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consider or disregard Jefferson’s filing at docket 166 consistent with the authority

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discussed above.

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DATED this 7th day of October, 2015.

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/s/

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JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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