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