Du Preez v. Banis et al
Filing
35
ORDER DENYING PLAINTIFF'S COMBINED MOTION TO STRIKE & FOR MORE DEFINITE STATEMENT 34 . Signed by JUDGE LESLIE E. KOBAYASHI on 07/14/2014. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RONI DU PREEZ,
)
)
Plaintiff,
)
)
vs.
)
)
RICK BANIS, DON CARANO, FRED )
SCARPELLO, JOHN MACKALL, ET
)
AL.,
)
)
)
Defendants.
_____________________________ )
CIVIL NO. 14-00171 LEK-RLP
ORDER DENYING PLAINTIFF’S COMBINED MOTION
TO STRIKE & FOR MORE DEFINITE STATEMENT
On April 17, 2014, Defendants Rick Banis, Don Carano,
Fred Scarpello, John Mackall, individually and as Trustees of the
Estate of William Pennington, and Western Equities, LLC
(“Defendants”) filed their Motion to Dismiss.
[Dkt. no. 5.]
The
Motion to Dismiss is set for hearing on September 22, 2014.
Currently before the Court is pro se Plaintiff Roni Du Preez’s
(“Plaintiff”) Combined Motion to Strike & for More Definite
Statement (“Motion to Strike”), filed on July 7, 2014.
34.]
[Dkt. no.
The Court finds this matter suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”).
After careful consideration of the
Motion to Strike and the relevant legal authority, Plaintiff’s
Motion to Strike is HEREBY DENIED for the reasons set forth
below.
DISCUSSION
I.
Format of the Motion to Dismiss
Plaintiff first argues that this Court should strike
Defendants’ Motion to Dismiss because it does not comply with
Local Rule 7.5 and Local Rule 10.2(a).
Local Rule 7.5 states,
inter alia:
(a) Unless the court orders otherwise, a
brief or memorandum in support of or in opposition
to any motion, petition, or appeal, including one
filed by a pro se party, shall not exceed thirty
(30) pages in length, unless it complies with
LR7.5(b) and (e).
(b) A brief or memorandum in support of or
in opposition to a motion, petition, or appeal may
exceed the page limitation in LR7.5(a) if it
contains no more than 9,000 words.
. . . .
(e) A brief or memorandum submitted under
LR7.5(b) . . . must include a certificate by the
attorney or a pro se party that the document
complies with the applicable word limitation.
This certificate shall state the font and the font
size used in a typed or computer-generated
document, and the number of words contained in the
document, whether typed, computer-generated, or
handwritten. The person preparing the certificate
may rely on the word count of the word-processing
system used to produce the document. The
certificate must state the number of words in the
document.
Plaintiff argues that, because the Memorandum in Support of the
Motion to Dismiss (“Dismissal Memorandum”) is more than thirty
pages long, Defendants were required to file a certification that
the Dismissal Memorandum contains 9,000 words or less.
2
The entire Dismissal Memorandum is thirty-seven pages,
but Local Rule 7.5(d) states, in pertinent part: “The case
caption, table of contents, table of authorities, exhibits,
declarations, certificates of counsel, and certificates of
service do not count toward the page or word limitation.”
Excluding those portions, the Dismissal Memorandum is thirty
pages long.
Defendants therefore were not required to include a
certificate of compliance pursuant to Local Rule 7.5(e).
Defendants did file a certificate, stating the Dismissal
Memorandum contains approximately 7,386.
Thus, the Dismissal
Memorandum also complies with Local Rule 7.5(b).
Plaintiff next argues that the font and the spacing of
the Dismissal Memorandum violate Local Rule 10.2(a), which
states, in pertinent part:
All typewriting, including footnotes, shall be in
either (1) a proportionally spaced face that is
14-point or larger and that includes serifs (e.g.,
14-point Times New Roman, CG Times, Charter BT, or
Georgia), except that sans-serif type (e.g., 14point Arial, CG Omega, or Univers) may be used in
headings and captions, or (2) a monospaced face
that contains not more than 10½ characters per
inch (e.g., 12-point Courier or Courier New). All
typewriting must be in a plain, Roman style,
except that italics, underlining, or boldface may
be used for emphasis. . . . All papers shall be
double-spaced except for the identification of
counsel, title of the case, footnotes, quotations,
and exhibits. If the court determines that a
matter does not comply with this rule, the matter
may be stricken by motion or sua sponte.
Plaintiff argues that this Court should strike the Motion to
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Dismiss because: the font used in the Dismissal Memorandum is
smaller than Local Rule 10.2(a) allows; and the Dismissal
Memorandum does not appear to be double-spaced.
First, based on this Court’s review, the Dismissal
Memorandum does not appear to violate Local Rule 10.2(a).
Second, even if there was a violation, it is a minor violation,
and this Court has the discretion to decide whether or not it is
appropriate to strike the document.
See Local Rule LR10.2(a)
(“If the court determines that a matter does not comply with this
rule, the matter may be stricken by motion or sua sponte.”
(emphasis added)).
Thus, even if the Dismissal Memorandum
violates Local Rule 10.2(a), this Court declines to strike the
Motion to Dismiss.
Plaintiff’s Motion to Strike is DENIED as to
the request to strike the Motion to Dismiss for violation of
Local Rule 7.5 and Local Rule 10.2.
This Court REMINDS all parties that their filings must
comply with the applicable court rules, including, but not
limited to, Local Rule 7.5 and Local Rule 10.2.
II.
Concise Statement of Facts
Plaintiff next argues that, because Defendants’ Motion
to Dismiss relies on evidence outside of the pleadings,
Defendants’ motion is actually a motion for summary judgment.
Plaintiff asks this Court to strike Defendants’ motion because
they failed to submit a concise statement of facts, as required
4
by Local Rule 56.1(a).
Local Rule 56.1(a) states, in pertinent
part:
A motion for summary judgment shall be accompanied
by a supporting memorandum and a separate concise
statement detailing each material fact as to which
the moving party contends that there are no
genuine issues to be tried that are essential for
the court’s determination of the summary judgment
motion (not the entire case).
Plaintiff is correct that, as a general rule, this
Court’s scope of review in considering a motion to dismiss is
limited to the allegations in the complaint.
See Daniels-Hall v.
Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).
“[A] court
may consider evidence on which the ‘complaint necessarily relies
if: (1) the complaint refers to the document; (2) the document is
central to the plaintiff’s claim; and (3) no party questions the
authenticity of the copy attached to the 12(b)(6) motion.’”
Id.
(some citations and internal quotation marks omitted) (quoting
Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006)).
If the
exhibits submitted with a motion to dismiss do not meet these
requirements, consideration of the exhibits requires the district
court to convert the motion to dismiss to a motion for summary
judgment.
Yamalov v. Bank of Am. Corp., CV. No. 10–00590
DAE–BMK, 2011 WL 1875901, at *7 n.7 (D. Hawai`i May 16, 2011)
(citing Parrino v. FHP, Inc., 146 F.3d 699, 706 n.4 (9th Cir.
5
1998)).1
These principles, however, govern the standard that
this Court must apply in reviewing Defendants’ Motion.
Even if
this Court considers evidence outside of the Complaint and
applies the summary judgment standard to Defendants’ Motion to
Dismiss, that would not automatically trigger Defendants’ duty to
file a concise statement of facts pursuant to Local Rule 56.1.
Thus, under the circumstances of this case, the Court finds that
Defendants were not required to file a concise statement of facts
with the Motion to Dismiss.
Plaintiff’s Motion to Strike is
DENIED as to the request to strike the Motion to Dismiss for
failure to comply with Local Rule 56.1.
III. Impertinent, Immaterial & Scandalous Matter
Plaintiff also alleges that the Public Notice to
Creditors (“the Notice”) that Defendants submitted with the
Motion to Dismiss, and Defendants arguments related to the
Notice, are “irrelevant, impertinent and immaterial.”
Supp. of Motion to Strike at 14.]
[Mem. in
She therefore asks this Court
to strike the Notice and any reference thereto pursuant to
Federal Rule of Civil Procedure 12(f).
This Court has already
ruled that Rule 12(f) only applies to pleadings and does not
apply to the parties’ memoranda in support of or in opposition to
motions.
[Order Denying Pltf.’s Motion to Remand & Pltf.’s
1
Parrino was superseded by statute on other grounds, as
stated in Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676,
681-82 (9th Cir. 2006).
6
Motion to Strike Defs.’ Opp. to Remand, filed 6/25/14 (dkt. no.
28) (“6/25/14 Order”), at 7.2]
The 6/25/14 Order also
acknowledged that this Court may strike a party’s filings
pursuant to its inherent powers.
[Id. at 7-8 (citing Ready
Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir.
2010)).]
As in the 6/25/14 Order, this Court finds that there is
no ground to strike the Motion to Dismiss because Plaintiff’s
Motion to Strike essentially expresses her disagreement with
Defendants’ arguments in the Motion to Dismiss.
Plaintiff’s
Motion to Strike is therefore DENIED as to the request to strike
the Motion to Dismiss because it allegedly contains impertinent,
immaterial, and scandalous matter.
IV.
Request for More Definite Statement
Finally, Plaintiff complains about “Defendants[’]
ambiguous, vague, insufficient, failure to make clear statement
or offer affidavit concerning employment records” and that
Defendants “decline[d] to make a clear statement unequivocally
admitting or denying said record(s) or the existence of said
record(s)[.]”
[Mem. in Supp. of Motion to Strike at 9.]
Plaintiff apparently considers this portion of the Motion to
Strike as a request for a more definite statement.
Federal Rule of Civil Procedure 12(e) states, in
pertinent part: “A party may move for a more definite statement
2
The 6/25/14 Order is also available at 2014 WL 2895467.
7
of a pleading to which a responsive pleading is allowed but which
is so vague or ambiguous that the party cannot reasonably prepare
a response.”
(Emphasis added.)
Thus, Rule 12(e) is inapplicable
because Plaintiff cannot obtain a more definite statement of a
motion, or any part thereof.
Plaintiff’s Motion to Strike is
DENIED as to the request for a more definite statement.
To the extent that Plaintiff is trying to obtain any
documentation regarding the terms of her employment, Plaintiff
must serve the appropriate discovery requests on Defendants, for
example, a request for production of documents pursuant to
Federal Rule of Civil Procedure 34.
This Court REMINDS all
parties that their discovery requests must comply with the
applicable court rules.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Combined
Motion to Strike & for More Definite Statement, filed July 7,
2014, is HEREBY DENIED.
IT IS SO ORDERED.
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DATED AT HONOLULU, HAWAII, July 14, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
RONI DU PREEZ VS. RICK BANIS, ET AL; CIVIL 14-00171 LEK-RLP;
ORDER DENYING PLAINTIFF’S COMBINED MOTION TO STRIKE AND FOR MORE
DEFINITE STATEMENT
9
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