(PC) Hernandez v. Marcelo, et al.
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MARINO ANTONIO HERNANDEZ,
Case No. 1:19-cv-01219-NONE-JLT (PC)
FINDINGS AND RECOMMENDATIONS
TO DENY PLAINTIFF’S MOTION TO
STRIKE DEFENDANTS’ AFFIRMATIVE
J. MARCELO, et al.,
Before the Court is Plaintiff’s motion to strike Defendants’ affirmative defenses from their
answer to Plaintiff’s complaint. (Doc. 28.) For the reasons set forth below, the Court recommends
that Plaintiff’s motion be denied.
Defendants filed their answer to Plaintiff’s complaint on July 16, 2020. (Doc. 24.) Federal
Rule of Civil Procedure 12(f) provides that a party must file a motion to strike a defense from an
answer within 21 days of being served with the pleading. Fed. R. Civ. P. 12(f)(2). Taking into
account the extra time provided by Rules 6(d) and 6(a)(1)(C), Plaintiff should have submitted his
motion to prison officials for mailing by August 10, 2020. See Douglas v. Noelle, 567 F.3d 1103,
1106-07 (9th Cir. 2009) (under the prison mailbox rule, a document submitted by a pro se
prisoner is deemed filed “at the time [he] delivered it to … prison authorities for forwarding to the
court clerk”) (internal quotation marks and citation omitted). Plaintiff’s motion and proof of
service, however, are dated August 13, 2020 (Doc. 28 at 10, 11), and the Court received the
motion on August 17, 2020. Plaintiff’s motion is therefore untimely, and the Court recommends
denial on this ground.
Assuming arguendo that Plaintiff timely submitted the motion, the Court still
recommends denial. In general, courts view motions to strike “with disfavor because [they] are
often used as delaying tactics, and because of the limited importance of pleadings in federal
practice…. Accordingly, courts often require a showing of prejudice by the moving party.” S.E.C.
v. Sands, 902 F. Supp. 1149, 1165–66 (C.D. Cal. 1995) (internal quotation marks and citations
omitted); see also Hernandez v. Balakian, No. 1:06-cv-01383-OWW-DLB, 2007 WL 1649911, at
*1 (E.D. Cal. 2007). Plaintiff moves to strike all but one of Defendants’ affirmative defenses
(Doc. 28 at 4-9), but he fails to allege or demonstrate any prejudice arising from the defenses.
Based on the foregoing, the Court RECOMMENDS that Plaintiff’s motion to strike
Defendants’ affirmative defenses (Doc. 28) be DENIED. These Findings and Recommendations
will be submitted to the United States District Judge assigned to this case, pursuant to the
provisions of 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these Findings and
Recommendations, Plaintiff may file written objections with the Court. The document should be
captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file
objections within the specified time may result in waiver of rights on appeal. Wilkerson v.
Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th
IT IS SO ORDERED.
January 5, 2021
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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