United States Of America v. Machinski

Filing 120

ORDER re ECF Nos. 101 & 113. The court denies the defendant's supplemental summary-judgment arguments and his motion to strike. The court's summary-judgment order stands. Signed by Judge Laurel Beeler on 6/16/2017. (lblc1S, COURT STAFF) (Filed on 6/16/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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UNITED STATES OF AMERICA,

Case No. 11-cv-01118-LB

Plaintiff,

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ORDER REGARDING THE
DEFENDANT’S SUPPLEMENTAL
SUMMARY-JUDGMENT BRIEFING &
MOTION TO STRIKE

v.

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ROBERT MACHINSKI,

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Defendant.

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Re: ECF Nos. 101 & 113
INTRODUCTION & BACKGROUND

This is a student-loan default case. The court already granted the government’s summary-

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judgment motion, and incorporates by reference here the facts and analysis in the order at ECF No.

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90.1 Although the court granted that motion, it deferred entering judgment and asked the

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government to consider a new settlement offer.2 The government declined to do so.3
Separately, also post-summary judgment, Mr. Machinski moved for reconsideration based on

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(1) a discrepancy between his loan consolidation application and the total loans disbursed, and (2)

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outstanding discovery that the government had not responded to.4 The court set forth a process to

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Summary-Judgment Order – ECF No. 90. Record citations refer to material in the Electronic Case
File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents.
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See id. at 11–12.

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See Statement – ECF No. 99.

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See Motion for Leave to File a Motion for Reconsideration – ECF No. 95.

ORDER – No. 11-cv-01118-LB

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address those issues and to give Mr. Machinski an opportunity to supplement the record before

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judgment is entered.5
Mr. Machinski filed a supplemental brief and declaration in opposition to the government’s

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summary-judgment motion, and the government responded.6 Mr. Machinski also moved to strike

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the government’s statement regarding its settlement offer under Federal Rule of Civil Procedure

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12(f).7
Mr. Machinski’s supplemental briefing does not alter the court’s summary-judgment analysis.

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His arguments, which are largely evidentiary objections, do not rebut the government’s prima

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facie case. The court’s summary-judgment order stands. Mr. Machinski’s motion to strike also

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fails.

United States District Court
Northern District of California

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ANALYSIS

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The court addresses Mr. Machinski’s supplemental briefing and motion to strike in turn: first,

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the court overrules his objections to the government’s evidence and the sufficiency thereof;
second, it denies his motion to strike.

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1. Objection #1 — Application and Disbursement Discrepancy
Mr. Machinski reasserts his objection to the loan-value discrepancy between the consolidation

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application ($21,200) and the actual amount disbursed ($21,706.09).8 He takes issue with the
government’s explanations for the discrepancy — the government originally said the difference
was caused by interest accrued between the application and disbursement dates, but now says the
application sum was only an estimate — and the government’s supporting evidence.
The government submits the declaration of Philippe Guillon, a Senior Loan Analyst at the

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Department of Education, and custodian of records kept by the Department relating to student

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Order – ECF No. 102.

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Defendant’s Supp. Brief – ECF No. 113; Government’s Response – ECF No. 118.

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Motion to Strike – ECF No. 101.

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Defendant’s Supp. Brief at 3–4.

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ORDER – No. 11-cv-01118-LB

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loans.9 Mr. Guillon has “access to the Department’s Debt Management and Collections System,” a

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database that contains “records of payment transactions, collection actions, and telephonic and

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written contacts between borrowers and the Department.”10 He is familiar with the circumstances

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of Mr. Machinski’s loan and explains the application–disbursement discrepancy.11

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The consolidation application and promissory note reflects a $21,200 loan balance consisting

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of six separate loans: $4,800, $4,300, $1,500, $4,800, $1,400, $4,400.12 Mr. Guillon explains that

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Mr. Machinski (as the borrower) filled out those sums “as an estimate of the amounts owed on

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each loan to be consolidated.”13 He points out that each loan to be consolidated was rounded to

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$100, and that “this would not be the case if the ‘actual’ balances were ascertained” because “in
most cases there would be numerical dollar and cents amounts.”14 Mr. Guillon goes on to explain

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United States District Court
Northern District of California

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that the application information “is used to locate each prior loan and to give the lender and the

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borrower awareness of the approximate amounts sought for consolidation.”15 Then, “[o]nce the

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payoff on each loan is determined, a Disclosure Statement and Repayment Schedule is mailed to

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the borrower showing the exact amount to be paid to each respective underlying servicer.”16
Mr. Guillon attaches a copy of that Disclosure Statement and Repayment Schedule, which

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reflects a total consolidated balance of $21,706.09 (the same as reflected in the Certificate of

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Indebtedness17), consisting of six loans in dollars-and-cents amounts: $4,725.55, $4,401.48,

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$1,598.04, $4,871.27, $1,467.82, $4,641.93.18

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Id. ¶ 2.

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Id. ¶¶ 3–6.

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Application and Promissory Note – ECF No. 81; Guillon Decl. – ECF No. 103, ¶ 4.

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Guillon Decl. – ECF No. 103, ¶ 4.

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Id.

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Id.

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Id. ¶ 5.

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See Certificate of Indebtedness – ECF No. 67-1 at 3.

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Disclosure Statement – ECF No. 103-1.

Guillon Decl. – ECF No. 103, ¶¶ 1–2.

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ORDER – No. 11-cv-01118-LB

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Mr. Machinski takes issue with Mr. Guillon’s explanation for three reasons: (1) Mr. Guillon

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did not “produce any calculation or loan statements on how the disbursement amounts identified

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on the Disclosure Statement were actually derived”; (2) he did not “offer any explanation as to

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what interest rates were applied”; and (3) his explanation “is nothing more than speculation and

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should be given no weight.”19
The court disagrees. First, Mr. Guillion explained how the Disclosure Statement amounts were

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derived: those amounts represent the dollars-and-cents values of Mr. Machinski’s loans that were

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paid off by Nellie Mae (the consolidating lender).20 The application and promissory note

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specifically contemplates — just above Mr. Machinski’s signature — that the consolidated loan
amount would be determined by the amount paid off and confirmed in a disclosure statement. That

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United States District Court
Northern District of California

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document reads:
I further authorize Nellie Mae to issue the proceeds of my consolidation loan to
each holder listed in the “Student Loan Information” section of this application. I
understand that the amount of my consolidation loan will be the sum of the balances
of my outstanding eligible loans which I have chosen to consolidate. My
outstanding balance on each loan to be consolidated will include unpaid principal,
accrued unpaid interest and late charges, as certified by each holder. . . .

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I understand that if I am eligible for a consolidation loan I will receive a Repayment
Schedule and Disclosure that identifies my loan amount (as determined by Nellie
Mae), interest rate, due dates, payment amounts and late charges.21

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Mr. Machinski does not provide any evidence showing that the consolidated loan disbursement

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was inaccurate.
Second, the court cannot see how Mr. Machinski’s interest-rate-based argument is relevant

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here. It may be that it is in response to the government’s past argument — articulated at the

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summary-judgment hearing — that the application and disbursement discrepancy was a result of

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accumulated interest. If so, that issue is moot in light of Mr. Guillon’s declaration.

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Defendant’s Supp. Brief at 4.

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Guillon Decl. – ECF No. 103, ¶¶ 4–5.

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Application and Promissory Note – ECF No. 81.

ORDER – No. 11-cv-01118-LB

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Third, Mr. Guillon’s declaration is not mere speculation, as Mr. Machinski asserts. Mr.

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Guillon, a Senior Loan Analyst, record custodian, and person familiar with Mr. Machinski’s loan

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account records has adequately demonstrated the knowledge necessary to offer this explanation.
The court overrules Mr. Machinski’s objections based on the discrepancy between the

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application and the actual amount disbursed.

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2. Objection #2 — Disclosure Statement Authentication

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Mr. Machinski’s second objection is that the Disclosure Statement and Repayment Schedule

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has not been properly authenticated.22 He appears to argue that the Disclosure Statement cannot be
authenticated because it is not signed by a Nellie Mae representative, that he has a right to

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United States District Court
Northern District of California

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confront whoever prepared the document, and that the government refused to produce the

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perparer’s name.23
A party submitting an item of evidence “must produce evidence sufficient to support a finding

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that the item is what the proponent claims it is.” Fed. R. Evid. 901(a). This may be done by the

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testimony of a witness with knowledge of the item, testifying “that an item is what it is claimed to

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be.” Id. 901(b)(1). An item may also be authenticated based on “[t]he appearance, contents,

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substance, internal patterns, or other distinctive characteristics of the item, taken together with all

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the circumstances.” Id. 901(b)(4).
Here, Mr. Guillon declares that he is a Senior Loan Analyst for the Department of Education,

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is the custodian of the Department’s student-loan records, is “familiar with the circumstances of

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[Mr. Machinski’s] loan[,] and [has] personal knowledge of the records pertaining to [it].”24 He

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states that the Disclosure Statement attached to his declaration is a “true and correct copy.”25 This

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declaration, plus the circumstances of the Disclosure Statement — including (1) the general

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(though not precise) consistency in the number and amount of the loans, and (2) the same name,

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Defendant’s Supp. Brief at 5.

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Id.

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Guillon Decl. – ECF No. 103, ¶¶ 1–3.

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Id. ¶ 5.

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ORDER – No. 11-cv-01118-LB

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address, and social security number appearing on the application and Disclosure Statement26 — is

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sufficient to show that the Statement is what the government claims it is.
The court overrules Mr. Machinski’s authentication objection.

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3. Objection #3 — Legibility of Promissory Note
Mr. Machinski challenges the promissory note as illegible.27 The court denied this argument in

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its summary-judgment order and said:
Indeed, the originally filed duplicate is difficult to read — the court cannot make
out the amount disbursed or the interest rate. But the government provided the court
and Mr. Machinski with a legible copy at the November 3 case-management
conference, which was also filed electronically. And, importantly, Mr. Machinski
does not deny that promissory note relates to his student loan. He does not deny that
it is his signature on the note, and he maintains only that the name on the top has
the wrong middle initial. The government named Mr. Machinski in this case as
“Robert P. Machinski aka Robert F. Machinski”; he never objected until now.
Moreover, the offending initial easily could be an “F.”28

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United States District Court
Northern District of California

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Mr. Machinski’s supplemental argument is substantially the same, but now he argues,

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“[s]pecifically, [that] the terms of the interest and transfer clauses are illegible.”29 Those two

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provisions appear on the back of the application and promissory note.30 The court agrees that the

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image quality is not ideal — there is a stamp overlapping these two provisions.31 But,

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notwithstanding a few illegible words, the material terms of those provisions are clear, and the

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court reproduces them below:
Interest: (1) I agree to pay simple interest on the [unreadable] principal from the
date of loan disbursement until the entire principal sum and accrued interest are
paid in [unreadable] . . . . responsible for the payment of all the interest that accrues
on this loan in accordance with the terms of the repayment schedule. (3) This
consolidation loan note shall bear interest at an annual rate on the unpaid principal
balance of the loan which is equal to the weighted [unreadable] interest rates on the
loans consolidated, rounded to the nearest whole percent except that such interest
rate shall not be less than 9 percent.

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See Disclosure Statement – ECF No. 103-1; Application and Promissory Note – ECF No. 81.

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Defendant’s Supp. Brief at 5–6.

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Summary-Judgment Order – ECF No. 90.

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Defendant’s Supp. Brief at 5–6.

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See ECF No. 84 at 1.

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Id.

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ORDER – No. 11-cv-01118-LB

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Transfer of Note: If Nellie Mae sells the loan or otherwise transfers the right to
receive payment, I will be sent a clear notification which spells out my obligations
to the party to whom the loan was sold. I will have the same rights and
responsibilities with the subsequent holder that I have with regard to the lender.
This not is not intended to be a negotiable instrument under the Uniform
Commercial Code as adopted by any state, and a subsequent holder of this Note
cannot be a holder in due course.32

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These provisions are not a model of legibility, but their meaning is clear: the consolidated loan

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would bear an interest of at least 9% (which it did33) and Mr. Machinski would be obligated to any

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subsequent purchaser of the loan.
There is no material dispute regarding these terms. The court denies Mr. Machinski’s

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argument.

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United States District Court
Northern District of California

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4. Objection #4 — Proof of Payment
Mr. Machinski next argues that the government “has not provided any documentation

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indicating [his] prior payments” and, as such, “it is unclear whether the amount that [the

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government] alleges is the correct amount.”34
Mr. Machinski confuses the burden of proof. As described in the court’s summary-judgment

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order, the government has the burden of establishing (1) the existence of the promissory note, (2)

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Mr. Machinski’s default, and (3) the amount due.35 United States v. Freeman, No. C 01-1859 SI,

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2002 WL 467688, at *1 (N.D. Cal. Mar. 25, 2002) (citing United States v. Irby, 517 F.2d 1042,

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1043 (5th Cir. 1975); see also United States v. Gray, No. C-11-02988 SLM (JCS), 2012 WL

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1657112, at *4 (N.D. Cal. May 10, 2012). “The burden [then] shifts to [Mr. Machinski] to prove

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that the amount due is not owing.” United States v. Chu, No. 00-3450 BZ, 2001 WL 1382156, at

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*1 (N.D. Cal. Oct. 31, 2001) (quoting United States v. Glaude, No. C-99-0182-VRW, 1999 WL

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1080680, at *1 (N.D. Cal. Nov. 12, 1999)) (alteration in original).

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ECF No. 84 at 1.

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See Certificate of Indebtedness – ECF No. 67-1 at 3; Disclosure Statement – ECF No. 103-1.

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34

Defendant’s Supp. Brief at 6.

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Summary-Judgment Order at 7–8.

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ORDER – No. 11-cv-01118-LB

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The government satisfied its burden (as described in the court’s prior order) through the signed

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consolidation application and promissory note, the Certificate of Indebtedness, and (now) the

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Disclosure Statement.36 The government even produced an accounting of Mr. Machinski’s debt

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payments, which included $2,156.83 credited against his account between May 1993 and August

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1994, and a credit of $16,123.87 in treasury offsets.37 (The accounting was “given final approval

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by the US Department [of] Education.”38)
The burden then shifted to Mr. Machinski to prove that the amount due is wrong. The court

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explained to Mr. Machinski that he cannot simply assert that the government’s “‘claim for

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damages exceed what, if anything, it would have been entitled to receive by the amounts already
paid to [it] through offsets and other payments [he] ha[s] already made.’”39 But he has not

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United States District Court
Northern District of California

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produced evidence rebutting the government’s case; it is not enough to speculate that payments

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may not have been taken into account.40 See Irby, 517 F.2d at 1043 (reversing district court’s

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holding that it was the government’s duty to “prove all credits given to defendants; that the

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[g]overnment had the ‘duty to prove how they arrived at the credits they have given them on it,’”

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and holding that the government established its prima facie case through “introduction of the note,

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the guaranty, and the sworn transcript of account”).
The court denies the argument.

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5. Objection #5 — Treasury Offsets
Mr. Machinski’s next argument is similar: he argues that the government improperly credited

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$16,123.87 in treasury offsets to interest only, and not principal.41

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36

Id. at 8.

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37

Loan Accounting – ECF No. 48 at 2; Certificate of Indebtedness – ECF No. 67-1 at 3.

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Loan Accounting at 2.

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Summary-Judgment Order at 9 (quoting Machinski Decl. – ECF No. 72, ¶ 11).

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40

See Defendant’s Supp. Brief at 6.

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Id. at 6–7.

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ORDER – No. 11-cv-01118-LB

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Mr. Guillon declares that the treasury offsets were credited to Mr. Machinski’s debt under 34

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C.F.R. § 682.209(b).42 That section, called “Payment application and prepayment,” says that

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“[e]xcept in the case of payments made under an income-based repayment plan, the lender may

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credit the entire payment amount first to any late charges accrued or collection costs and then to

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any outstanding interest and then to outstanding principal.” 34 C.F.R. § 682.209(b)(1). Mr.

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Machinski cites no authority that this was improper. The court denies the argument.

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6. Objection #6 — Hearsay and Personal Knowledge
Mr. Machinski’s final objection goes generally to Mr. Guillon’s declarations and interrogatory

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responses.43 He argues that Mr. Guillon’s declarations (and interrogatory responses) contain

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United States District Court
Northern District of California

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hearsay statements that do not fall under the business-records exception because the records he

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relies on were not made by the Department of Education, but by third-party lender Nellie Mae.44

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Thus, he urges, the government has not satisfied its prima facie burden because “[t]he actual

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existence of original promissory notes has not been established.”45

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First, as the court noted in its summary-judgment order, the Certificate of Indebtedness is

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admissible as a public record.46 See United States v. Badgett, No. CV 15-02350-BRO (JPRx),

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2016 WL 5886916, at *2 (C.D. Cal. Feb. 3, 2016) (stating that “Certificates of Indebtedness fall

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within the public records exception to hearsay”); United States v. Ragan, No. CV 10-7654

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(MANx), 2011 WL 5075544, at *2 (C.D. Cal. Oct. 25, 2011) (same), reversed on other grounds

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by United States v. Ragan, 546 F. App’x 657 (9th Cir. 2013).

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Second, the promissory note and Disbursement Statement are admissible as business records.

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“A record of an act, event, condition, opinion, or diagnosis” is admissible as a business record if:

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42

Guillon Decl. – ECF No. 67, ¶ 7.

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Defendant’s Supp. Brief at 7–15.

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See id.

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45

Id. at 13.

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See Summary-Judgment Order at 7.

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ORDER – No. 11-cv-01118-LB

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(A) the record was made at or near the time by — or from information transmitted
by — someone with knowledge;

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(B) the record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling, whether or not for profit;

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(C) making the record was a regular practice of that activity;

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(D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11) or (1) or
with a statute permitting certification; and

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(E) the opponent does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness.

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Fed. R. Evid. 803(6). Generally, “[t]he person presenting the foundation for a business record

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must be testifying as to the procedures of the appropriate business,” and so “a person receiving a
document from an unaffiliated business could not solely by virtue thereof lay a sufficient

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Northern District of California

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foundation for the record as a business record of the issuing business.” Wright & Miller, 30C Fed.

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Prac. & Proc. Evid. § 7047 (2017 ed.). But “records a business receives from others are admissible

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under Federal Rule of Evidence 803(6) when those records are kept in the regular course of that

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business, relied upon by that business, and where that business has a substantial interest in the

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accuracy of the records.” MRT Const. Inc. v. Hardrives, Inc., 158 F.3d 478, 483 (9th Cir. 1998)

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(citing United States v. Childs, 5 F.3d 1328, 1333–34, 1334 n.3 (9th Cir.1993)); see also Brawner

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v. Allstate Indem. Co., 591 F.3d 984, 987 (8th Cir. 2010); United States v. Adefehinti, 510 F.3d

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319, 326 (D.C. Cir. 2007); Air Land Forwarders, Inc. v. United States, 172 F.3d 1338, 1342–44

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(Fed. Cir. 1999); United States v. Duncan, 919 F.2d 981, 986 (5th Cir. 1990). Under Rule 803(6),

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then, at least one district court has admitted Department of Education records even though they

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were “based on or include[d] the records of the lender or guarantor.” See United States v. Giles,

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No. 14-cv-978, 2017 WL 564012, at *3 (E.D. Wis. Feb. 10, 2017).
Here, Mr. Guillon’s declaration satisfies Rule 803(6) to introduce both the promissory note

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and the Disclosure Statement. He declares that he has access to the Department’s Debt

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Management and Collections System, “a computer database that contains pertinent information on

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all defaulted student loan accounts held by the Department.”47 The database contains records “of

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Guillon Decl. – ECF No. 67, ¶ 2; Guillon Decl. – ECF No. 103, ¶ 2.

ORDER – No. 11-cv-01118-LB

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payment transactions, collection actions, and telephonic and written contacts between borrowers

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and the Department, Department staff[,] or the staff of the Department’s contractors.”48 The

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records are “created pursuant to Department procedures by Department staff and by staff of

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contractors retained by the Department to collect these loans, in the regular course of their duties

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at the time of the transaction or event recorded.”49 They are made “at the or near the time of the

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transaction recorded, by or from information transmitted by a person with knowledge of the

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transaction, and are kept in the course of the Department’s regularly conducted business” of

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administering the loan programs, “pursuant to the Department’s regular practice of making and

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keeping such records.”50 Mr. Guillon declares that he has personal knowledge of such records
pertaining to Mr. Machinski’s loans,51 and declares that the promissory note and Disclosure

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United States District Court
Northern District of California

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Statement attached to his declarations are true and correct copies of those documents.52
This is sufficient even though Department of Education staff did not create the records. The

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Department keeps student-loan documents — and relies on them — in the regular course of its

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business. Indeed, “federal regulations require [the Department] to obtain lender and guarantor

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records and maintain them for FFELP loans assigned to [the Department] unless the Secretary . . .

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says otherwise.” Giles, 2017 WL 564012 at *3 (citing 34 C.F.R. § 682.409); see 34 C.F.R.

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§ 682.409(c)(4) (requiring the guaranty agency to submit, among other things, the promissory

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note, a written assignment, the loan application, payment and collection histories, and

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disbursement records). And, because the Department must collect on the assigned student loans, it

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clearly has a substantial interest in those records’ accuracy.
Mr. Machinski does not show that the documents (or their preparation) are untrustworthy. To

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the extent he tries to do so by arguing that the middle initial on the promissory note could be a “P”

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48

Guillon Decl. – ECF No. 67, ¶ 2; Guillon Decl. – ECF No. 103, ¶ 2.

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49

Guillon Decl. – ECF No. 67, ¶ 2; Guillon Decl. – ECF No. 103, ¶ 2.

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50

Guillon Decl. – ECF No. 67, ¶ 2; Guillon Decl. – ECF No. 103, ¶ 2.

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Guillon Decl. – ECF No. 67, ¶ 2; Guillon Decl. – ECF No. 103, ¶ 3.

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Guillon Decl. – ECF No. 67, ¶ 4, Ex. 2; see also ECF Nos. 81, 83–84; Guillon Decl. – ECF No. 103,
¶ 5, Ex. 1.
52

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ORDER – No. 11-cv-01118-LB

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instead of his initial, “F,” the court denies that argument for a second time.53 As the court noted

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before, the initial could easily be an “F,” and Mr. Machinski does not deny that the promissory

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note relates to his student loan or that the signature on it is his.54
The court also denies Mr. Machinski’s argument that there are gaps in the chain of assignment

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which, according to him, renders the business-records exception inapplicable because the “record

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keeping reliability has not been established by personal knowledge of someone familiar with the

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practices of each entity at each point in the chain.”55 Mr. Guillon’s declaration adequately

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establishes the records’ trustworthiness under 803(6). See Duncan, 919 F.2d at 986–87 (explaining

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that the “primary emphasis of rule 803(6) is on the reliability or trustworthiness of the records
sought to be introduced” and that “[t]here is no requirement that the witness who lays the

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United States District Court
Northern District of California

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foundation be the author of the record or be able to personally attest to its accuracy”) (internal

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quotation marks omitted).
And the court denies Mr. Machinski’s argument that Mr. Guillon could not lay a foundation

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under Rule 803(6) because “[a]ll of the key events making out [the government’s] breach of

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contract claim occurred prior to Mr. Guillon’s and his employer’s involvement or generation of

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any records.”56 See Giles, 2017 WL 564012 at *3–*4 (denying a similar argument where the

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Department’s senior loan analysis “ha[d] personal knowledge to support his declaration based on

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his familiarity with [Department] records, he ha[d] provided sufficient indicia of their reliability,

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and [the defendant] ha[d] done nothing to suggest that any of the records at issue [were] inaccurate

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or unreliable”).

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In sum, the court overrules Mr. Machinski’s supplemental objections to the government’s

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*

evidence. His arguments do not rebut the government’s prima face case.

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53

See Defendant’s Supp. Brief at 13; Summary-Judgment Order at 6, 9.

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See Summary-Judgment Order at 6.

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55

Defendant’s Supp. Brief at 13, 15.

28

56

Id. at 14 (emphasis in original).

26

ORDER – No. 11-cv-01118-LB

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1

7. Motion to Strike
After granting the government’s motion for summary judgment but before entering judgment,

2
3

the court asked the government to reconsider its settlement posture.57 It did, and it submitted a

4

statement of compliance with the court’s order.58 But in its statement the government explained

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that it would not offer a more favorable settlement.59 Mr. Machinski objects to the government’s

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reasoning for that decision and moves to strike the document under Federal Rule of Civil

7

Procedure 12(f).60
Under Rule 12(f), a court “may strike from a pleading an insufficient defense or any

8
9

redundant, immaterial, impertinent, or scandalous matter.” The purpose of a Rule 12(f) motion is
to avoid spending time and money litigating spurious issues. Whittlestone, Inc. v. Handi-Craft Co.,

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United States District Court
Northern District of California

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618 F.3d 970, 973–74 (9th Cir. 2010). Striking is appropriate if it “will make trial less complicated

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or eliminate serious risks of prejudice to the moving party, delay, or confusion of the issues.”

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Sliger v. Prospect Mortg., LLC, 789 F. Supp. 2d 1212, 1216 (E.D. Cal. 2011). Motions to strike

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“are generally disfavored because the motions may be used as delaying tactics and because of the

15

strong policy favoring resolution of the merits.” Barnes v. AT&T Pension Benefit Plan-

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Nonbargained Program, 718 F. Supp. 2d 1167, 1170 (N.D. Cal. 2010). The ultimate decision

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under Rule 12(f) lies within the sound discretion of the court. See Fantasy, Inc. v. Fogerty, 984

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F.2d 1524, 1528 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517, 534–35 (1994).
Here, Mr. Machinski moves to strike the government’s statement of compliance with the

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20

court’s summary-judgment order. The court denies the motion for at least three reasons. First,

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“[u]nder the express language of the rule, only pleadings are subject to motions to strike,” Sidney-

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Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983), and the government’s statement of

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compliance is not a pleading. Second, striking the statement will not serve Rule 12(f)’s purpose of

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efficient, non-prejudicial resolution: the government’s statement is irrelevant to the court’s

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57

See Summary-Judgment Order at 11–12.

58

Statement – ECF No. 99.

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59

Id.

28

60

Motion to Strike – ECF No. 101.

26

ORDER – No. 11-cv-01118-LB

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