Moretti v. Wyeth, Inc. et al

Filing 276

ORDER defendants emergency motion 275 is DENIED IN PART. Plaintiffs late-filed response is not stricken and will be considered by the court. Defendants emergency motion 275 is GRANTED IN PART. Pliva may file a reply to plaintiffs opposition up to and including October 4, 2011. Signed by Judge James C. Mahan on 9/28/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MARY KAREN MORETTI,

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2:08-CV-396 JCM (CWH)

Plaintiff,
v.
PLIVA, INC., and TEVA
PHARMACEUTICALS, USA, INC.,

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Defendants.

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ORDER

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Presently before the court is defendant Pliva, Inc.’s emergency motion to strike. (Doc. #275).

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Pliva asserts that plaintiff’s response to its motion to dismiss was filed late and should not be

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considered by this court. (Doc. #275). Alternatively, Pliva moves the court for leave to file a reply

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in support of its motion to dismiss. (Doc. #275).

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On August 10, 2011, the court held a status hearing for this case. During the hearing, the

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court and the parties agreed on a briefing schedule for dispositive motions. (See Doc. #269).

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According to the minutes of this hearing, dispositive motions were due by September 7, 2011, replies

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by September 19, 2011, and responses by September 23, 2011. (Doc. #269). It appears that the

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minutes of the proceedings erroneously switched the “reply” and “response” titles in the briefing

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schedule.

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When Pliva timely filed its motion to dismiss on September 7, 2011, CM/ECF automatically

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generated a response deadline that was different from the deadline ordered by the court in the August

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10, 2011, status hearing. Instead of the September 19, 2011, deadline ordered at the status hearing,

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James C. Mahan
U.S. District Judge

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CM/ECF indicated that the response deadline was September 24, 2011. (Doc. #271).

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Pliva filed a notice of non-opposition on September 23, 2011. (Doc. #272). This notice was

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filed four days after the court-ordered response deadline, but one day prior to CM/ECF’s

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automatically generated deadline. Plaintiff filed a response to the motion to dismiss the next day,

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on September 24, 2011. (Doc. #273). The response file date was consistent with CM/ECF’s

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automatically generated deadline.

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Plaintiff contemporaneously filed a response to Pliva’s notice of non-opposition. (Doc.

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#274). In the response, plaintiff asserts that the late file date was a result of the confusion caused

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by: (1) the erroneously notated scheduling period in the minutes of the proceedings, and (2) the

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conflicting response deadlines in the minutes of the proceedings and CM/ECF. (Doc. #274).
On September 27, 2011, Pliva filed the instant motion, asking the court to strike plaintiff’s
late-filed response or, in the alternative, grant leave to file a reply. (Doc. #275).

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Plaintiff did file her response after the court-ordered deadline. However, in light of the

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confusion surrounding the applicable deadline, the court finds that this late filing was inadvertent

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and excusable.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant’s emergency

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motion (doc. #275) be, and the same hereby is, DENIED IN PART. Plaintiff’s late-filed response

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is not stricken and will be considered by the court.

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IT IS FURTHER ORDERED that defendant’s emergency motion (doc. #275) be, and

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the same hereby is, GRANTED IN PART. Pliva may file a reply to plaintiff’s opposition up to and

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including October 4, 2011.

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DATED September 28, 2010.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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