Saunders v. The Law Offices of Elaine Van Beveren et al

Filing 41

ORDER signed by Judge Garland E. Burrell, Jr on 1/3/12 ORDERING that Plaintiff's MOTION to Strike 38 is DENIED. However, Plaintiff's arguments stated in his Motion to Strike will be considered in reviewing the Magistrate Judge's Findings and Recommendations. (Mena-Sanchez, L)

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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 ROBERT SAUNDERS, 5 Plaintiff, 6 7 No. 2:10-cv-02559 GEB KJN PS v. 9 THE COUNTY OF SACRAMENTO, SACRAMENTO, CALIFORNIA; THE LAW OFFICES OF ELAINE VAN BEVEREN; ELAINE VAN BEVEREN, Individually, 10 Defendants. 8 ORDER / 11 12 On December 6, 2011, the assigned magistrate judge filed Findings and 13 Recommendations in this case that recommend the dismissal of plaintiff’s Second Amended 14 Complaint with prejudice (Dkt. No. 36). On December 20, 2011, plaintiff filed timely objections 15 to the Findings and Recommendations (Dkt. No. 37). However, on December 21, 2011, plaintiff 16 filed a motion to strike the Findings and Recommendations pursuant to Federal Rule of Civil 17 Procedure 12(f) (Dkt. No. 38) that sets forth arguments very similar to those contained in 18 plaintiff’s objections to the Findings and Recommendations . By this order, the court denies 19 plaintiff’s motion to strike without a hearing or opposition, see Fed. R. Civ. P. 78(b), E. Dist. 20 Local Rule 230(g), but advises plaintiff that the court will consider plaintiff’s motion to strike as 21 additional objections to the Findings and Recommendations. 22 Plaintiff’s motion to strike is denied because Federal Rule of Civil Procedure 12(f) may 23 not be used to strike a magistrate judge’s proposed findings and recommendations. Rule 12(f) 24 permits the court to “strike from a pleading an insufficient defense or any redundant, immaterial, 25 impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f) (emphasis added). The term “pleading” 26 is further defined in Federal Rule of Civil Procedure 7(a) as follows: 1 1 (a) Pleadings. Only these pleadings are allowed: 2 (1) a complaint; 3 (2) an answer to a complaint; 4 (3) an answer to a counterclaim designated as a counterclaim; 5 (4) an answer to a crossclaim; 6 (5) a third-party complaint; 7 (6) an answer to a third-party complaint; and 8 (7) if the court orders one, a reply to an answer. 9 Here, plaintiff’s motion to strike seeks to strike material that does not constitute a 10 pleading or that is not contained in a pleading. Accordingly, plaintiff’s motion to strike is 11 denied. See Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983) (“Under the 12 express language of the rule, only pleadings are subject to motions to strike.”). However, out of 13 an abundance of caution, the court will consider the substantive arguments in plaintiff’s motion 14 to strike in resolving the magistrate judge’s Findings and Recommendations. 15 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion to strike (Dkt. No. 38) is 16 denied. However, plaintiff’s arguments stated in his motion to strike will be considered in 17 reviewing the magistrate judge’s Findings and Recommendations. 18 19 IT IS SO ORDERED. Dated: January 3, 2012 20 21 22 GARLAND E. BURRELL, JR. United States District Judge 23 24 25 26 2

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