Ivory v. Tilton, et al.

Filing 133

ORDER Denying Plaintiff's Motion To Strike (Doc. 131 ), signed by Magistrate Judge Gary S. Austin on 6/26/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NORMAN IVORY,

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ORDER DENYING PLAINTIFF’S MOTION
TO STRIKE
(Doc. 131.)

Plaintiff,

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1:09-cv-01272-AWI-GSA-PC

vs.
CORRECTIONAL OFFICER S. MERAZ,

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Defendant.

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I.

BACKGROUND

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Plaintiff Norman Ivory (“Plaintiff), a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. ' 1983 on July 20, 2009. This

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action for damages is proceeding against Defendant Correctional Officer S. Meraz

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(“Defendant”), for use of excessive force. Jury trial has been scheduled in this action for

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October 22, 2013, at 8:30 a.m., before District Judge Anthony W. Ishii.

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On June 17, 2013, Plaintiff filed a motion requesting the court to void Defendant’s

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notice declining Magistrate Judge jurisdiction in this action. (Doc. 131.) The court construes

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Plaintiff’s motion as a motion to strike.

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II.

PLAINTIFF’S MOTION TO STRIKE

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Plaintiff argues that Defendant’s notice should be stricken from the record because it

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was filed after the thirty-day deadline established by the court’s Second Scheduling Order
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entered on May 2, 2013. Further, Plaintiff argues that he is prejudiced by the late filing

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because Plaintiff filed a timely notice consenting to Magistrate Judge jurisdiction. Plaintiff

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then requests reassignment of this action to the District Judge.

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Discussion

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The court finds no good cause to strike Defendant’s notice of June 4, 2013 merely

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because it was filed one day late.1 Under Rule 6 of the Federal Rules of Civil Procedure, the

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court may allow a late filing for good cause. Fed. R. Civ. P. 6(b)(1)(A). The court finds no

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evidence that Plaintiff is somehow prejudiced by the filing of Defendant’s notice. In fact, the

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result is the same whether the June 4, 2013 notice is on or off the court’s record, because

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Defendant previously declined Magistrate Judge jurisdiction on June 2, 2011. (Doc. 47.)

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Plaintiff is advised that because Defendant has declined Magistrate Judge jurisdiction, the case

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will remain assigned to a District Judge unless both parties consent to the jurisdiction of a

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Magistrate Judge. 28 U.S.C. § 636(c). Plaintiff’s request for reassignment of this action to the

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District Judge is moot because the case is already assigned to the District Judge.

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III.

Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion to strike is

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CONCLUSION

DENIED.

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IT IS SO ORDERED.
Dated:

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June 26, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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The court’s Second Scheduling Order, which was served on May 2, 2013, required the parties to submit
a consent/decline form within thirty days of the date of service of the order. (Doc. 125.) Thus, the thirty-day
deadline expired on Monday, June 3, 2013. Fed. R. Civ. P. 6(a)(1),(d).
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