(PC) Hernandez v. Marcelo, et al.

Filing 40

FINDINGS and RECOMMENDATIONS recommending that 28 Plaintiff's Motion to Strike Defendants' Affirmative Defenses be DENIED signed by Magistrate Judge Jennifer L. Thurston on 1/5/2021. Referred to Unassigned DJ. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARINO ANTONIO HERNANDEZ,

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Plaintiff,
v.

Case No. 1:19-cv-01219-NONE-JLT (PC)
FINDINGS AND RECOMMENDATIONS
TO DENY PLAINTIFF’S MOTION TO
STRIKE DEFENDANTS’ AFFIRMATIVE
DEFENSES

J. MARCELO, et al.,
(Doc. 28)

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Defendants.

14-DAY DEADLINE

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Before the Court is Plaintiff’s motion to strike Defendants’ affirmative defenses from their

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answer to Plaintiff’s complaint. (Doc. 28.) For the reasons set forth below, the Court recommends

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that Plaintiff’s motion be denied.

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Defendants filed their answer to Plaintiff’s complaint on July 16, 2020. (Doc. 24.) Federal

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Rule of Civil Procedure 12(f) provides that a party must file a motion to strike a defense from an

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answer within 21 days of being served with the pleading. Fed. R. Civ. P. 12(f)(2). Taking into

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account the extra time provided by Rules 6(d) and 6(a)(1)(C), Plaintiff should have submitted his

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motion to prison officials for mailing by August 10, 2020. See Douglas v. Noelle, 567 F.3d 1103,

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1106-07 (9th Cir. 2009) (under the prison mailbox rule, a document submitted by a pro se

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prisoner is deemed filed “at the time [he] delivered it to … prison authorities for forwarding to the

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court clerk”) (internal quotation marks and citation omitted). Plaintiff’s motion and proof of

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service, however, are dated August 13, 2020 (Doc. 28 at 10, 11), and the Court received the

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motion on August 17, 2020. Plaintiff’s motion is therefore untimely, and the Court recommends

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denial on this ground.

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Assuming arguendo that Plaintiff timely submitted the motion, the Court still

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recommends denial. In general, courts view motions to strike “with disfavor because [they] are

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often used as delaying tactics, and because of the limited importance of pleadings in federal

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practice…. Accordingly, courts often require a showing of prejudice by the moving party.” S.E.C.

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v. Sands, 902 F. Supp. 1149, 1165–66 (C.D. Cal. 1995) (internal quotation marks and citations

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omitted); see also Hernandez v. Balakian, No. 1:06-cv-01383-OWW-DLB, 2007 WL 1649911, at

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*1 (E.D. Cal. 2007). Plaintiff moves to strike all but one of Defendants’ affirmative defenses

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(Doc. 28 at 4-9), but he fails to allege or demonstrate any prejudice arising from the defenses.

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Based on the foregoing, the Court RECOMMENDS that Plaintiff’s motion to strike

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Defendants’ affirmative defenses (Doc. 28) be DENIED. These Findings and Recommendations

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will be submitted to the United States District Judge assigned to this case, pursuant to the

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provisions of 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these Findings and

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Recommendations, Plaintiff may file written objections with the Court. The document should be

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captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file

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objections within the specified time may result in waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th

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Cir. 1991)).

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IT IS SO ORDERED.
Dated:

January 5, 2021

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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