(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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARINO ANTONIO HERNANDEZ, 12 13 14 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) 15 Defendants. 14-DAY DEADLINE 16 17 Before the Court is Plaintiff’s motion to strike Defendants’ affirmative defenses from their 18 answer to Plaintiff’s complaint. (Doc. 28.) For the reasons set forth below, the Court recommends 19 that Plaintiff’s motion be denied. 20 Defendants filed their answer to Plaintiff’s complaint on July 16, 2020. (Doc. 24.) Federal 21 Rule of Civil Procedure 12(f) provides that a party must file a motion to strike a defense from an 22 answer within 21 days of being served with the pleading. Fed. R. Civ. P. 12(f)(2). Taking into 23 account the extra time provided by Rules 6(d) and 6(a)(1)(C), Plaintiff should have submitted his 24 motion to prison officials for mailing by August 10, 2020. See Douglas v. Noelle, 567 F.3d 1103, 25 1106-07 (9th Cir. 2009) (under the prison mailbox rule, a document submitted by a pro se 26 prisoner is deemed filed “at the time [he] delivered it to … prison authorities for forwarding to the 27 court clerk”) (internal quotation marks and citation omitted). Plaintiff’s motion and proof of 28 service, however, are dated August 13, 2020 (Doc. 28 at 10, 11), and the Court received the 1 motion on August 17, 2020. Plaintiff’s motion is therefore untimely, and the Court recommends 2 denial on this ground. 3 Assuming arguendo that Plaintiff timely submitted the motion, the Court still 4 recommends denial. In general, courts view motions to strike “with disfavor because [they] are 5 often used as delaying tactics, and because of the limited importance of pleadings in federal 6 practice…. Accordingly, courts often require a showing of prejudice by the moving party.” S.E.C. 7 v. Sands, 902 F. Supp. 1149, 1165–66 (C.D. Cal. 1995) (internal quotation marks and citations 8 omitted); see also Hernandez v. Balakian, No. 1:06-cv-01383-OWW-DLB, 2007 WL 1649911, at 9 *1 (E.D. Cal. 2007). Plaintiff moves to strike all but one of Defendants’ affirmative defenses 10 (Doc. 28 at 4-9), but he fails to allege or demonstrate any prejudice arising from the defenses. 11 Based on the foregoing, the Court RECOMMENDS that Plaintiff’s motion to strike 12 Defendants’ affirmative defenses (Doc. 28) be DENIED. These Findings and Recommendations 13 will be submitted to the United States District Judge assigned to this case, pursuant to the 14 provisions of 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these Findings and 15 Recommendations, Plaintiff may file written objections with the Court. The document should be 16 captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file 17 objections within the specified time may result in waiver of rights on appeal. Wilkerson v. 18 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 19 Cir. 1991)). 20 21 22 IT IS SO ORDERED. Dated: January 5, 2021 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2

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