Maddin, Inc. v. Allied Insurance Company of America

Filing 57

ORDER Denying 49 Motion to Strike. Signed by Judge Kent J. Dawson on 12/9/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MADDIN, INC,

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Case No. 2:13-CV-827-KJD-NJK
Plaintiff,

v.
ORDER
ALLIED INSURANCE COMPANY OF
AMERICA, et al.,
Defendants.

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Before the Court is Defendants’ Motion to Strike (#49). Plaintiff opposed the motion

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(#53) and Defendants replied (#55). Defendants’ motion (#49) relates to Plaintiff’s Opposition to

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Defendants’ Motion for Summary Judgment (#43).

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I. Legal Standard

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Defendants cite Federal Rule of Civil Procedure 56(c)(B)(2)—the Court will assume

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Defendants mean Rule 56(c)(2)—which provides that a party “may object that the material cited

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to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”

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However, this Rule permits a party to object, not move to strike. Motions to strike are governed

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by Rule 12(f), which was neither cited nor applied by Defendants. Further, Rule 56 applies only

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to facts which “cannot” be presented in an admissible form. Rule 56(c)(2). In a motion for

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summary judgment it is sufficient if the substance of the evidence is admissible even if

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inadmissible in its current form, if the requirements of Rule 56 are met. Fraser v. Goodale, 342

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F.3d 1032, 1036 (9th Cir. 2003); Block v. City of Los Angeles, 253 F.3d 410, 419 (9th Cir.

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2001). Thus, hearsay statements for which there are obvious witnesses who could be called at

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trial may be properly considered by the Court. However, it is well-settled law that documentary

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evidence must be authenticated in order to be properly considered. See Canada v. Blain's

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Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987). Lastly, Rule 56(c)(3) permits the Court to

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consider any materials in the record, even if lacking a citation. As a practical matter, while the

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Court may consider any materials in the record, factual assertions without reliable citations are

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given little if any weight.

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II. Analysis of Motion to Strike (#49)
Statement 1

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Defendants claim that Plaintiff’s explanation of why it requested a short extension from

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Defendants “is in fact false.” Whether or not the explanation (which is buried in a lengthy

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footnote) is false, it is immaterial. Defendants have no good faith grounds for seeking to have the

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Court strike this statement.

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Statement 2

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Defendants are upset about Plaintiff’s introduction including a citation-less

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characterization of Defendants’ assertion of defenses. However, it is common practice to omit

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citations from introductory statements, and characterization is at the heart of advocacy. If

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Defendants see matters differently, they are free to set forth their own view in their own

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pleadings. No grounds for striking the statement have been asserted, for the simple reason that

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none exist.

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Statements 3-4

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Defendants assert that this statement is unsupported by the evidence or citation. However,

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Statement 3 is clearly editorial rather than factual, and as explained above, uncited factual

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statements are given little if any weight by the Court. At bottom, there are no grounds to support

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striking this statement.

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Statement 5

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Here, Defendants complain about Maddin’s passing reference to the landlord as having

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“no known expertise in plumbing issues.” It is unclear why Defendants are bothered by this

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reference. Further, it is unclear that the reference is inaccurate. Nor is the Court concerned—as

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Defendants are—that Plaintiff failed to provide a citation demonstrating that it is unknown

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whether the landlord has plumbing expertise. In short, there are no grounds to strike.

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Statement 6

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Defendants assert that there is no evidence cited to support this statement. First, Plaintiff

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is not required, upon pain of striking the statement, to provide a citation for every fact. Such a

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course is wise and effective, but not required. Second, there was a citation provided that

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substantiates Plaintiff’s statement. In short, Defendants’ lack either factual or legal grounds to

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move to strike this statement.

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Statement 7

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This statement lacks citation. The Court will therefore give it appropriate (substantially

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diminished) weight. No legal or factual grounds for striking the statement are offered by

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Defendants.

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Statement 8, 10, and 12

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Defendants here argue that regarding an expert opinion the term “hypothesis” was used,

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when “conclusion” would have been more accurate. The Court will not waste its time on such

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immaterial semantic gymnastics. Nor does it require perjury by an expert witness for his opinion

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to be incorrect. No valid grounds for striking the statement have been proffered by Defendants.

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Statement 9

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Defendants are correct that this statement is unathenticated, precluding the Court from

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relying on it. However, no grounds for striking the statement are proffered.

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Statement 11

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Defendants are correct that this is an unsupported factual assertion. Defendants are

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incorrect that this constitutes grounds for striking the document.

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Statements 13-15

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Defendants have admitted this fact in their own motion (#39). Accordingly, they have

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likely waived any objection to this statement of fact. However, at a minimum, no valid grounds

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for striking the statement have been raised.

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Statement 16

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Defendants assert that Plaintiff overstates the clarity with which it pled its Fourth Cause

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of Action in the First Amended Complaint by using the word “expressly.” The Court refuses to

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grace this dross with analysis. Suffice it to say that no grounds for striking the statement are

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present.

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Statement 17

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As noted under the legal standards section above, it is utterly irrelevant that the records

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cited by Plaintiff may constitute hearsay. Further, the evidence cited clearly supports the fact

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asserted. Accordingly, Defendants are left without any factual or legal basis for objecting, let

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alone moving to strike the statement.

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Statement 18, 20, 21, 22, 24, 29, 31

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Defendants are incorrect. Defendants are objecting to the characterization of evidence,

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not to the evidence itself. Additionally, the evidence cited supports Plaintiff’s characterization.

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At bottom, no grounds to strike are asserted.

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Statement 19 was not identified by Defendants

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Statement 23, 30, 32

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Defendants are correct that this is an unsupported assertion. The Court will give this

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statement its proper weight. However, no valid grounds for striking the statement have been

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proffered.

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Statement 25

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Surprisingly, Defendants fail to assert that this statement lacks a citation. Instead, they

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argue that it is speculative and irrelevant. At bottom, no grounds are presented which would

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justify striking the statement.

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Statement 26

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Defendant here asserts that Plaintiff has mischaracterized the evidence. The Court must

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agree. It appears clear to the Court that Plaintiff’s penchant for reinterpretation of the facts has

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crossed the line into misrepresentation here. The Court admonishes Plaintiff to take greater care,

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as future misrepresentations to the Court will be dealt with seriously. However,

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misrepresentation is not a ground for striking the statement.

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Statement 27

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Defendants correctly point out that this fact lacks a citation. However, Defendants’ claim

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that Plaintiff cannot rely on the same document cited in Defendants own motion to strike falls

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flat. At bottom, no grounds to strike this statement are asserted.

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Statement 28

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Defendants claim that this statement may not be considered by the Court because it is

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unauthenticated and non-self-authenticating. Defendants are correct, the Court will not consider

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this statement.

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Summary

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1. Not only are there no valid grounds asserted for striking the above statements,
Defendants fail to either cite or apply Rule 12(f) which governs motions to strike.

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2. Even if Defendants had objected as permitted under Rule 56(c)(2), those objections

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would be denied as meritless. Lastly, the Court would have noticed the few missing

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or inaccurate citations regardless of Defendants’ protestations, making these issues at

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best superfluous.

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III. Conclusion
This is the second frivolous motion this Court has endured at Defendants’ hands. The

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parties, and particularly Defendants, are HEREBY on notice that any further waste of this

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Court’s time and attention will be met with sanctions under this Court’s inherent authority and

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Rule 11.

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Accordingly, the Court HEREBY ORDERS that inasmuch as the Motion to Strike (#49) lacks

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any legal or factual basis, the motion is DENIED.

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DATED this 9th day of December 2014.

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_____________________________
Kent J. Dawson
United States District Judge

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