Winding v. Allstate

Filing 151

ORDER signed by Magistrate Judge Kendall J. Newman on 9/5/12 DENYING 147 Reply without prejudice to re-filing a procedurally proper motion before the District Judge. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JACOB WINDING,

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Plaintiff,

No. 2:09-cv-03526 KJM KJN PS

v.
ALLSTATE INSURANCE COMPANY
and DOES 1 through 25, inclusive,

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Defendants,

ORDER

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AND RELATED COUNTERCLAIM

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/

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On August 2, 2012, defendant and counter-claimant Allstate Insurance Company

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(“Allstate”) filed a motion to compel plaintiff’s compliance with Allstate’s request to permit its

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“attorneys, agents, employees, consultants and/or experts to enter upon and inspect the property

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located at 1127 W. Harding Way in Stockton, California.”1 (Mot. to Compel at 1, Dkt. No. 142).

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On August 3, 2012, the court ordered Allstate to show cause why it was permitted to conduct the

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particular type of discovery at issue after the close of discovery, and Allstate responded to the

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order to show cause (“OSC”). (See OSC, Dkt. No. 143; Allstate’s Response, Dkt. No. 144.)

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This matter proceeds before the undersigned pursuant to Eastern District of California
Local Rule 302(c)(1) and 28 U.S.C. § 636(b)(1).
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On August 8, 2012, before the court heard Allstate’s motion to compel or resolved

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the OSC, Allstate withdrew its motion to compel (Dkt. No. 145), which in turn mooted the OSC.

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However, on August 30, 2012, plaintiff and counter-defendant Jacob Winding filed a “reply” to

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the motion to compel and the OSC wherein he claims that Allstate trespassed on his property on

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August 7, 2012, and conducted a litigation-related inspection (Dkt. No. 147). Through his

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“reply,” Mr. Winding moves the court, pursuant to Federal Rule of Civil Procedure 37(b), “for an

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order striking all information procured on . . . August 7, 2012 and the Testimony of all person

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[sic] whom entered the subject property . . . on the grounds that they were improperly obtain [sic]

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. . . . (Winding’s Reply at 1.) Mr. Winding lists four particular categories of testimony and

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evidence. (Id. at 2.)
The court denies Mr. Winding’s request for relief without prejudice. First,

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Allstate’s motion to compel is no longer pending such that plaintiff replied to a motion that is not

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actually before the court. Second, to the extent that Mr. Winding intended his “reply” to

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constitute a separate motion, Mr. Winding did not file a procedurally proper motion pursuant to

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Local Rule 230 or 251, as appropriate. At bottom, plaintiff’s request appears to be a motion in

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limine seeking the exclusion of testimony and evidence at trial. Such a request or motion would

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be more appropriately addressed to the district judge, who will actually conduct the impending

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trial in this case.

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Accordingly, IT IS HEREBY ORDERED that the relief requested in Mr.

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Winding’s “reply” filed August 30, 2012 (Dkt. No. 147), is denied without prejudice to re-filing

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of a procedurally proper motion before the district judge.

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IT IS SO ORDERED.
DATED: September 5, 2012
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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