Joe Hand Promotions Incorporated v. Manzo et al

Filing 30

ORDER denying 26 Motion to Strike; granting 27 Motion for Leave to File. Plaintiff may file a surreply that is consistent with this order within 7 days of today's date. Signed by Judge John W Sedwick on 9/21/16.(JWS)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 11 Joe Hand Promotions, Inc., 12 13 14 15 Plaintiff, vs. Juan Valencia Manzo, et al., Defendants. ) ) ) ) ) ) ) ) ) ) 2:15-cv-00313 JWS ORDER AND OPINION [Re: Motions at Docket 26 and 27] 16 17 18 I. MOTIONS PRESENTED At docket 17 the court entered a final default judgment in favor of plaintiff Joe 19 Hand Promotions, Inc. (“Plaintiff”). At docket 19 defendants Juan Valencia Manzo 20 (“Manzo”), Luz Valencia (“Valencia”), and Manzo Restaurants at Central, LLC 21 (collectively, “Defendants”) move pursuant to Rules 55(c) and 60(b) for an order setting 22 the judgment aside. Plaintiff opposes at docket 22. Defendants reply at docket 25. 23 Before the court are two motions related to the above filings. At docket 26 24 Plaintiff moves to strike portions of Defendants’ reply, and at docket 27 Plaintiff moves 25 for leave to file a surreply. At docket 29 Defendants oppose the motion to strike, but 26 not the motion for leave to file a surreply. Plaintiff has not filed a reply. 27 Oral argument was not requested but would not assist the court. 28 -1- 1 2 II. BACKGROUND “Ultimate Fighting Championship 157: Ronda Rousey v. Liz Carmouche” is a 3 televised fighting program (“the Program”) that aired in February 2013. Plaintiff sued 4 Defendants for showing the Program at their restaurant without authorization, in 5 violation of Plaintiff’s rights as the Program’s exclusive commercial domestic distributor. 6 On May 7, 2015, Plaintiff submitted a request for entry of default against all 7 Defendants.1 This request was supported by proofs of service from James Menona 8 (“Menona”), a process server who declared that on April 9, 2015, at around 12 :20 pm 9 he served a copy of the summons and complaint on all three defendants at Valencia 10 Produce, a separate business that Manzo runs.2 Menona states that he served all 11 three defendants the same way: “by delivering [copies of the documents] to and leaving 12 [them] with” Manzo and Valencia, personally.3 13 After a clerk’s entry of default was issued,4 Plaintiff moved the court to enter a 14 default judgment in its favor in the amount of $23,000.5 The court granted Plaintiff’s 15 motion on June 11, 2015. 6 Exactly one year later, on June 11, 2016, Defendants filed 16 their motion to set aside the default judgment. 17 18 19 20 21 1 Doc. 12. 22 2 23 Docs. 9, 10, and 11. 3 24 25 Docs. 9, 10, and 11. Menona states that service on Manzo Restaurants at Central, LLC was effectuated through service on Valencia, the company’s registered agent for service of process. Doc. 10. 26 4 27 5 28 6 Doc. 13. Doc. 14. Doc. 16. -2- 1 2 III. DISCUSSION A. 3 Motion for Leave to File a Surreply Based on Defendants’ non-opposition to Plaintiff’s motion, Plaintiff will be 4 granted leave to file a surreply that responds to new arguments and evidence that 5 Defendants raised for the first time in reply, including but not limited to the declaration 6 of Linda J. Guzman (“Guzman”) at docket 25-1. 7 7 B. 8 9 Motion to Strike 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 10 part of a filing or submission on the ground that it is prohibited (or not authorized) by a 11 statute, rule, or court order.” 8 The decision to grant or deny a motion to strike is within 12 the court’s discretion. 9 13 Plaintiff asks the court to strike two pieces of evidence and two arguments that, it 14 argues, Defendants raised for the first time in reply. Plaintiff relies on MJG Enterprises, 15 where the court struck certain arguments and evidence because they were raised for 16 the first time in reply and the plaintiff lacked an opportunity to respond to them.10 MJG 17 Enterprises can be differentiated from the case at bar, however, because here the non- 18 19 20 21 22 7 Plaintiff’s surreply need not respond to the returns of service that Defendants submitted as Exhibit B to their reply. The court agrees with Plaintiff that they are irrelevant. 23 8 24 9 25 26 27 28 LRCiv 7.2(m)(1). Spencer v. Stapler, No. 04-1532 PHX SMM, 2006 WL 2052704, at *2 (D. Ariz. July 21, 2006). 10 MJG Enterprises, Inc. v. Cloyd, No. CV-10-0086-PHX-MHM, 2010 WL 3842222, at *6 n.1 (D. Ariz. Sept. 27, 2010) (citing Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (“[W]here new evidence is presented in a reply to a motion for summary judgment, the district court should not consider the new evidence without giving the [non-]movant an opportunity to respond.”) (internal quotation omitted)). -3- 1 moving party will have an opportunity to respond to the new arguments and evidence in 2 a surreply brief. Plaintiff’s motion to strike will be denied.11 3 4 IV. CONCLUSION Based on the preceding discussion, Plaintiff’s motion at docket 26 is DENIED 5 and Plaintiff’s motion at docket 27 is GRANTED. Plaintiff may file a surreply that is 6 consistent with this order within 7 days of today’s date. 7 DATED this 21st day of September 2016. 8 9 /s/ JOHN W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 See, e.g., Wren v. RGIS Inventory Specialists, 256 F.R.D. 180, 201 (N.D. Cal. 2009) (“To the extent Plaintiffs may have gone beyond the scope of the Opposition, RGIS was given an opportunity to submit a sur-reply, as well as additional rebuttal declarations of its own. Under these circumstances, it would be inappropriate to grant the relief requested by RGIS.”); Am. Civil Liberties Union of Nevada v. City of Las Vegas, 13 F. Supp. 2d 1064, 1071 (D. Nev. 1998) (“Because this court issued a minute order (# 43) allowing defendants an opportunity to respond with their own evidence, defendants’ objection on the delay in plaintiffs submission of this evidence is no longer valid.”). -4-

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