Paland v. Brooktrails Township C.S.D. et al

Filing 76

ORDER DENYING MOTION TO STRIKE AND VACATING HEARING ON MOTION TO DISMISS. Signed by Judge Richard Seeborg on 11/7/14. (cl, COURT STAFF) (Filed on 11/7/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID PALAND,

Case No. 14-cv-00631-RS

Plaintiff,
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United States District Court
Northern District of California

v.
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ROY RICHARD WILLIAMS, et al.,

ORDER DENYING MOTION TO
STRIKE AND VACATING HEARING
ON MOTION TO DISMISS

Defendants.
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Pursuant to Civil Local Rule 7-1(b), plaintiff’s motion to strike the pending motion to

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dismiss is suitable for disposition without oral argument. The motion to strike is denied, rendering

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the associated request to hear it on shortened time moot.

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Plaintiff contends the motion to dismiss was untimely because it was filed more than 14

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days after he personally delivered a copy of the Second Amend Complaint to the offices of

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defendant’s counsel. The motion, however, was filed within 14 days of entry of the Second

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Amended Complaint into the ECF system, which under Civil Local Rule 5-1(h) generally results

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in the completion of service. The fact that plaintiff himself is not a registered e-filer does not

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render Rule 5-1(h) inapplicable on its face. Defendants acted reasonably in calculating their

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response date, even if a technical argument can be constructed that the time began running earlier.

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Additionally, while any failure to comply with the timing requirements of the federal and local

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rules is not a matter to be taken lightly, a motion to dismiss filed a few days late generally would

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not be stricken, and there would have been no reason to do so here, even in the absence of

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ambiguity as to the response date.

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Plaintiff further argues the motion to dismiss should be stricken because, he contends, the

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defenses advanced are either “insufficient” or have been “waived.” Such arguments belong in an

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opposition brief, and indeed, plaintiff has raised them in his. They do not support a separate

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motion to strike. Were it otherwise, then virtually every motion to dismiss would result in a

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motion to strike, with the consequent wasteful duplication of arguments and unnecessary

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consumption of Court and party time that has occurred here.

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The merits of plaintiff’s arguments will be addressed in conjunction with the motion to
dismiss. Pursuant to Civil Local Rule 7-1(b), that motion also is suitable for disposition without
oral argument, and the hearing set for November 13, 2014 is vacated.

United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: November 7, 2014
______________________________________
RICHARD SEEBORG
United States District Judge

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<< SHORT ORDER TITLE >>
CASE NO. 14-cv-00631-RS

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