Whitmore v. Does 1-25, inclusive
Filing
66
ORDER re cross-motion filed by defendants Blount and Horsman and plaintiff's motion to strike. Signed by Judge Hamilton on 8/26/2014. (pjhlc2, COURT STAFF) (Filed on 8/26/2014)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MARLON WHITMORE,
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Plaintiff,
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TIMOTHY WILHELM, et al.,
ORDER RE CROSS-MOTION
FILED BY DEFENDANTS BLOUNT
AND HORSMAN AND PLAINTIFF’S
MOTION TO STRIKE
Defendants.
_______________________________/
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For the Northern District of California
United States District Court
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v.
No. C 13-1408 PJH
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On August 21, 2014, the court ordered defendants Blount and Horsman to show
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cause as to why their late-filed cross-motion for summary judgment should not be stricken
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as untimely. Defendants filed their response on August 22, 2014, admitting that the motion
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“appears to conflict” with the court’s scheduling order, but requesting that the court exercise
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its discretion and consider the motion, even though no reason for the late filing was offered.
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In the alternative, defendants asked that the court consider the legal argument contained in
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the cross-motion as part of defendants’ opposition to plaintiff’s motion for summary
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judgment.
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Notwithstanding defendants’ failure to show good cause for their tardiness and
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plaintiff’s objection to the untimely filing, because their opposition brief was well under the
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25-page limit set by Civil Local Rule 7-3(a), and because inclusion of the cross-motion
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would still not exceed the page limit, the court will consider defendants’ late-filed cross-
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motion as part of their opposition brief. Plaintiff therefore need not file a separate response
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to defendants’ cross-motion, and can address, in his reply brief, the arguments raised in
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both defendants’ opposition brief and their cross-motion. Defendants may not file a reply
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brief.
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On August 25, 2014, plaintiff filed a motion to strike portions of defendants Blount
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and Horsman’s brief in opposition to plaintiff’s motion for summary judgment. Plaintiff’s
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objections to defendants’ brief should have been contained in his reply brief as required by
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Civil L.R. 7-3(d). Moreover it is not clear when plaintiff expects the motion to strike to be
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heard. There is no noticed hearing date on the docket at No. 63, but the briefing schedule
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noted therein calls for a reply brief to be filed by September 15, 2014, which would make
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the hearing date October 1, 2014. The motion itself, however, reflects a hearing date of
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September 10, 2014, a date too soon for a motion filed on August 25, 2014. It also
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appears that the same objections contained in the motion to strike are also raised in a
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motion for Rule 11 sanctions which plaintiff has served on defendants, but not yet filed.
The court also takes this opportunity to note that on August 20, 2014, all defendants
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For the Northern District of California
United States District Court
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filed an opposition to plaintiff’s motion for summary judgment accompanied by a separate
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document containing their objections to evidence relied upon by plaintiff. The objections
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contained in this separate filing should have been part of their opposition brief as required
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by Civil L.R. 7-3(a).
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Counsel for all parties are hereby ORDERED to re-familiarize themselves with the
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Local Rules of this court. All future filings made in violation of these rules will be stricken by
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the court. The September 10, 2014 hearing on the two pending motions for summary
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judgment will proceed as scheduled. Plaintiff’s motion to strike will be decided on the
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papers after it is fully briefed, unless the court determines that a hearing is necessary.
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IT IS SO ORDERED.
Dated: August 26, 2014
______________________________
PHYLLIS J. HAMILTON
United States District Judge
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