Edwards v. Vemma Nutrition et al

Filing 143

ORDER: IT IS ORDERED that: (1) The motion to strike, or alternatively for leave to file a sur-reply (Doc. 134 ) is DENIED; (2) The motion to strike (Doc. 136 ) is DENIED; and (3) The motion for extension (Doc. 140 ) is GRANTED, such that Plaintiff has 14 days from the date of this Order to file a response to Mehta's motion to dismiss. No further extension requests will be considered [see attached Order for details]. Signed by Judge Dominic W Lanza on 12/17/18. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John Edwards,

No. CV-17-02133-PHX-DWL

Plaintiff,

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v.

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ORDER

Vemma Nutrition, et al.,

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Defendants.

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Pending before the Court are two motions to strike filed by Plaintiff (Docs. 134,

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136), as well as a request by Plaintiff for more time to file a response to one of the motions

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he’s attempting to strike (Doc. 140).

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The First Motion:

On September 4, 2018, defendant Vemma International

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Holdings, Inc. (“Vemma Holdings”) filed a motion to dismiss. (Doc. 114.) Plaintiff did

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not file a response until October 4, 2018. (Doc. 125.) That filing was untimely—responses

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are due within 14 days of when a motion is filed. See LRCiv 7.2(c). As a result, Vemma

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Holdings pointed out the untimeliness of the response in its reply, which was filed on

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October 11, 2018. (Doc. 128 at 1 [“Plaintiff failed to timely respond to Vemma Holdings’

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motion, missing the deadline by 16 days.”].) More than a month later, Plaintiff filed a

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“motion to strike” the portions of Vemma Holdings’ reply addressing the timeliness issue.

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(Doc. 134.) The motion alternatively requests leave to file a sur-reply. Id.

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The Second Motion: On November 8, 2018, defendant Haresh Mehta filed a motion

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to dismiss. (Doc. 131.) On November 19, 2018, Plaintiff filed a motion to strike, arguing

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that Mehta’s motion should be stricken because it should have been filed earlier. (Doc.

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136.) This filing did not address the merits of Mehta’s motion. Id. On December 7,

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2018—long after the 14-day deadline for responding on the merits to Mehta’s motion had

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expired—Plaintiff filed a motion for an extension of time to respond to the motion in the

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event the motion to strike is denied. (Doc. 140.)

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Both of Plaintiff’s motions to strike will be denied. In the first motion, Plaintiff

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contends that Vemma Holdings shouldn’t be allowed, in its reply, to mention the

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untimeliness of Plaintiff’s response—let alone seek relief on that basis—because the

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untimeliness issue wasn’t raised in Vemma Holdings’ original motion. (Doc. 134 at 1-2;

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see also Doc. 138 at 2 [“[T]he portion of Vemma Holdings’ Reply regarding the timeliness

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of Plaintiff’s Opposition memoranda [w]as a new argument on the merits. Such new

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arguments are not permitted in reply briefs . . . .”].) This argument is baseless. When

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Vemma Holdings filed its motion, it presumably believed that Plaintiff was familiar with,

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and would comply with, the basic rules and deadlines that are applicable in federal court.

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Thus, Vemma Holdings didn’t need to preemptively and hypothetically argue in its motion

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that it would be entitled to relief if Plaintiff ignored the deadline for filing a response. And

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once Plaintiff ignored the deadline, it was perfectly appropriate for Vemma Holdings to

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mention the issue in its reply. Burnham v. City of Rohnert Park, 1992 WL 672965, *1 n.2

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(N.D. Cal. 1992) (“[R]eply briefs are limited in scope to matters either raised by the

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opposition or unforeseen at the time of the original motion.” (emphasis added)). Moreover,

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even if Plaintiff had been sandbagged by an argument improperly raised for the first time

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in a reply—which, as noted, didn’t happen here—there still would be no need for Plaintiff

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to move to “strike” the new arguments. AIRFX.com v. AirFX LLC, 2012 WL 129804, *1

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(D. Ariz. 2012) (“Defendant moves to strike plaintiffs’ reply . . . , arguing that the reply

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raises new arguments . . . . [A] motion to strike in this case is unnecessary, as we do not

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consider new arguments raised in a reply.”).1

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The second motion to strike (Doc. 136) also lacks merit. In a nutshell, Plaintiff’s

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The Court also denies Plaintiff’s alternative request to file a sur-reply.
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position is that Mehta’s motion to dismiss was untimely filed. The proper way to advance

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such a claim is to file a response to the motion and, in that response, raise the issue of

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untimeliness as a reason why the motion should be denied. A motion to strike is not the

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correct vehicle for advancing such a claim. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d

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880, 885 (9th Cir. 1983) (district court erred by striking a motion it deemed unmeritorious

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instead of denying the motion: “A movant’s right to appeal from an order denying a motion

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is worth little if the denying judge can strike the motion from the record altogether.

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Approval of the district court’s action would establish a procedure that, if abused, could

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shield erroneous district court orders from review. We hold that F.R.Civ.P. 12(f) should

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not be construed as allowing this undesirable result.”). See also Collaborative Continuing

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Educ. Council, Inc. v. Starks Realty Grp., Inc., 2017 WL 5714727, *1 (D. Ariz. 2017)

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(noting that only pleadings (not motions) may be the subject of a motion to strike under

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Rule 12(f), that Local Rule 7.2(m) tightly restricts the circumstances under which a motion

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to strike may be filed, and that “[c]ourts view motions to strike disfavorably ‘because they

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are often used to delay and because of the limited importance of the pleadings in federal

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practice’” (citation omitted)).

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Finally, the Court will grant, albeit grudgingly, Plaintiff’s motion for an extension

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of time to file a response to Mehta’s motion to dismiss. (Doc. 140). It is unfortunate that

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Plaintiff has wasted so much of the Court’s and the other parties’ time by filing baseless

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motions to strike. Nevertheless, denying the extension request would have the practical

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effect of granting Mehta’s motion to dismiss, see LRCiv 7.2(i), and it is preferable for

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matters to be resolved on the merits after adversarial presentation.

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Accordingly, IT IS ORDERED that:

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(1)

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The motion to strike, or alternatively for leave to file a sur-reply (Doc. 134)

is DENIED;

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(2)

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…

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The motion to strike (Doc. 136) is DENIED; and

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(3)

The motion for extension (Doc. 140) is GRANTED, such that Plaintiff has

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14 days from the date of this Order to file a response to Mehta’s motion to dismiss. No

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further extension requests will be considered.

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Dated this 17th day of December, 2018.

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