Franklin v. United States

Filing 45

ORDER SUA SPONTE STRIKING Letters to the Judge (Docs. 40 , 42 ) and ORDER DENYING AS MOOT 43 Defendant's Motion to Strike Letters to the Judge signed by Magistrate Judge Michael J. Seng on 11/27/2012. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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EMERY I. FRANKLIN,

CASE No. 1:10-cv-00142-LJO-MJS (PC)
ORDER SUA SPONTE STRIKING
LETTERS TO THE JUDGE

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Plaintiff,
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vs.

(ECF No. 40, 42)

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ORDER DENYING AS MOOT
DEFENDANT’S MOTION TO STRIKE
LETTERS TO THE JUDGE

UNITED STATES,

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Defendant.

(ECF No. 43)

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_____________________________/
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I.

PROCEDURAL HISTORY
On January 20, 2010, Plaintiff Emery Franklin, a federal prisoner proceeding

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pro se and in forma pauperis, filed this civil action pursuant to the Federal Tort Claims

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Act (“FTCA”). (Compl., ECF No. 1.) Plaintiff consented to Magistrate Judge

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jurisdiction. (Consent, EFC Nos. 5, 34.) Defendant declined Magistrate Judge

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jurisdiction. (Decline, ECF No. 29.)

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Defendants have answered the Second Amended Complaint. (Answer, ECF
No. 22.) On May 1, 2012, the Court issued its Discovery and Scheduling Order (Disc.

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& Sch. Order, ECF No. 24) providing a November 1, 2012 deadline to amend

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pleadings, a discovery cut-off of January 1, 2013, and a dispositive motion deadline of

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March 11, 2013. On November 2, 2012 and November 5, 2012, Plaintiff filed Letters to

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the Judge (“Letters”) appearing to request discovery relief to include appointment of

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counsel. (Req. for Disc. Relief, ECF Nos. 42 and 40 respectively.)
On November 16, 2012, Defendant filed a motion to strike the Letters on

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grounds of improper ex parte communication. (Mot. Strike, ECF No. 43.)

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II.

LEGAL STANDARDS

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Rule 12(f) provides that the court may strike from a pleading “an insufficient

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defense, or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.

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Civ. P. 12(f). Rule 12(f) is limited to striking from a pleading only those specific matters

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which are provided for in the rule. Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970,

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974–75 (9th Cir. 2010).
The decision to grant or deny a motion to strike is vested in the trial judge's

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sound discretion. Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 664–65 (7th

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Cir. 1992), citing Alvarado–Morales v. Digital Equip. Corp., 843 F.2d 613, 618 (1st Cir.

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1988).

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“The Federal Rules of Civil Procedure do not provide for a motion to strike

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documents or portions of documents other than pleadings. Instead, trial courts make

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use of their inherent power to control their dockets, Anthony v. BTR Auto. Sealing

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Sys., 339 F.3d 506, 516 (6th Cir. 2003), when determining whether to strike

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documents or portions of documents.” Zep Inc. v. Midwest Motor Supply Co., 726

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F.Supp.2d 818, 822 (S.D. Ohio 2010).

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“Any documents filed in a civil rights action in which the defendants are not

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represented by the California State Attorney General must include a certificate of

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service stating that a copy of the document was served on the opposing party. Fed. R.

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Civ. P. 5; Local Rule 135 (modified). A document submitted without the required proof

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of service will be stricken.” (First Informational Order, ECF No. 3 at ¶ 4.)

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III.

ANALYSIS

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The Letters shall be stricken by the Court sua sponte.

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Plaintiff was required to include with each Letter request for discovery relief a

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certificate of service stating that a copy of the document was served on the

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Defendant. Plaintiff failed to do so.
Plaintiff is advised that any request for discovery relief must comply with the

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Discovery and Scheduling Order and the rules and requirements cited therein. (Disc. &

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Sch. Order, ECF No. 24 at ¶ 5.) Plaintiff’s Letters do not so comply. They fail to

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identify any pending discovery request or motion or deadline as to which relief is

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sought. Plaintiff does not identify the specific relief desired. He provides no legal or

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factual basis for such relief. He provides no basis for reconsidering the Court’s

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November 1, 2012 Order Denying Motion for Appointment of Counsel (Order Denying

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Mot., ECF No. 39), or any new grounds for appointing counsel. Fed. R. Civ. P.

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60(b)(6); Local Rule 230(j).
Defendant’s motion to strike the Letters (ECF No. 43) shall be denied as moot.

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The Court has sua sponte stricken the Letters for the reasons above.

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IV.

ORDER

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Accordingly, it is HEREBY ORDERED THAT:

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1.

The Court sua sponte strikes the Letters requesting discovery relief (ECF

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No. 40, 42) without prejudice to Plaintiff filing any desired discovery

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motion in a manner compliant with the Discovery and Scheduling Order

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and the rules and requirements cited therein, and
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Defendants motion to strike the Letters (ECF No. 43) is DENIED as
moot.

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IT IS SO ORDERED.

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Dated:
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November 27, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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