Uriarte v. Schwarzenegger, et al

Filing 138

ORDER Denying (Doc. 115 ) Motion to Strike. Signed by Judge Thomas J. Whelan on 7/14/2010. (All non-registered users served via U.S. Mail Service)(cap)

Uriarte v. Schwarzenegger, et al

Doc. 138

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Plaintiff's motion comes fifty-six days after Defendants' served their Answer, far 26 outside of the twenty-one day limit specified by FED. R. CIV. P. 12(f)(2). However, Plaintiff has submitted a letter -- filed as a document discrepancy, nunc pro tunc -- 27 alleging that the 12(f) motion was originally submitted on December 30, 2009, but was 28 never filed nor rejected by the Clerk of the Court. The docket does not reflect anything to justify Plaintiff's claim. Although most likely time barred, the Court will address the merits of Plaintiff's motion to strike.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA FRANCISCO URIARTE, Plaintiff, vs. ARNOLD SCHWARZENEGGER, et. al., Defendants. On February 8, 2010, Plaintiff Francisco Uriarte ("Plaintiff"), a state prisoner proceeding pro se, filed a motion to strike the answers of Defendants Martinez, Camaucho, Jenkin, Ritter and Rauper, pursuant to Federal Rule of Civil Procedure 12(f).1 On March 15, 2010, Defendants filed an opposition to the motion to strike. (Doc. No. 120.) In Reply, Plaintiff concedes that the motion to strike should be denied in regards to Defendants Camaucho, Jenkin, Ritter and Rauper. (Doc. No. 129 at 2.) Thus, the Court will only address the motion to strike in regards to Martinez. CASE NO. 06-CV-1558 W (WMC) ORDER DENYING MOTION TO STRIKE (Doc. No. 115.)

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06cv1558W

Dockets.Justia.com

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First, Plaintiff argues that Martinez's Answer was not timely. On August 18,

2 2009, this Court granted a Rule 60 motion for reconsideration in Plaintiff's favor, which 3 revived the claims against Martinez. (Doc. No. 95.) The Order did not, however, 4 specify the time in which Martinez had to file an Answer. It could be argued that 5 Martinez had sixty days because he had originally executed a waiver of service. See Fed. 6 R. Civ. P. 12(a)(1)(A)(ii). The actual determination, however, was rendered moot 7 when Plaintiff filed the First Amended Complaint ("FAC") on November 19, 2009. 8 (Doc. No. 105.) See Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 9 (9th Cir. 1990). 10 Typically, Martinez's responsive pleading would have been due November 30, 11 2009. See FED. R. CIV. P. 15(a)(3) (2009)(superseded Dec 1, 2009)(the amended rule 12 extends from 10 to 14 days the period to respond to an amended pleading). Martinez 13 did not file his Answer until December 10, 2009. (Doc. No. 108.) 14 Martinez asserts that he was not required to file an Answer until after the Court 15 had screened the FAC pursuant to 28 U.S.C. § 1915A(a). Although not required, 16 Defendants chose to file their Answer for several reasons, one of which was to 17 streamline the proceedings by preventing the Court from having to conduct an 18 unnecessary screening of the FAC. (Doc. No. 120 at 6.) Having reviewed the moving 19 papers, the Court agrees that Martinez was not required to file a responsive pleading in 20 accordance with Rule 15 due to the nature of this proceeding, and thus, his Answer was 21 not untimely.2 22 24 25 The Court agrees with Plaintiff that the applicability of 28 U.S.C. § 1915A and 26 42 U.S.C. § 1997e(g)(1) is somewhat vague as applied to Plaintiff's amended complaint. The Court has given Martinez the benefit of the doubt in this situation because this 27 Court could have been more clear in regards to ordering the responsive pleading, and 28 because Defendants' argument in regards to judicial economy is appreciated. Similarly, the Court gave Plaintiff the benefit of the doubt in regards to the timeliness of the filing of the instant motion. (See note 1.)
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Second, Plaintiff claims that Martinez's answers are "non-responsive" and that

23 they do not "admit or deny" the allegations of the FAC. (Doc. No. 115 at 2.) However,

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1 Rule 8(b)(5) clearly states: "[a] party that lacks knowledge or information sufficient to 2 form a belief about the truth of an allegation must so state, and the statement has the 3 effect of a denial." Therefore, having reviewed the Answer, the Court finds that 4 Martinez's answers are legitimate denials based on a lack of information. 5 Lastly, Plaintiff argues that Martinez's Answer should be stricken because his 6 denials are a "complete duplicate" of the answer to the original complaint filed by the 7 other named defendants. Having reviewed the Answer, the Court concludes this 8 challenge lacks merit for the same reason as stated above regarding Rule 8(b)(5). 9 In sum, having reviewed the moving papers, the Court finds that Plaintiff has not 10 shown he is entitled to the drastic remedy available under Rule 12(f) in regards to 11 Maritnez's Answer. See FED. R. CIV. P. 12(f). 12 13 14 15 16 DATED: July 14, 2010 17 18 19 20 21 22 23 24 25 26 27 28
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As such, Plaintiff's motion to strike is DENIED. (Doc. No. 115.) IT IS SO ORDERED.

Hon. Thomas J. Whelan United States District Judge