Federal National Mortgage Association v. Willis et al
ORDER Granting Plaintiff's 116 Motion to Strike McKinnon's 93 Affidavit. Signed by Magistrate Judge George Foley, Jr on 10/14/2016. (Copies have been distributed pursuant to the NEF - SLD)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
FEDERAL NATIONAL MORTGAGE
CLARENCE MOSES WILLIS, et al.,
Case No. 2:15-cv-02366-JCM-GWF
This matter is before the Court on Plaintiff’s Motion to Strike Defendant McKinnon’s
Affidavit in Response to Plaintiff’s Complaint (ECF No. 116), filed on September 22, 2016. To
date, Defendant McKinnon has not filed an opposition to Plaintiff’s motion and the time for
response has now expired.
Plaintiff filed its Amended Complaint (ECF No. 41) against all defendants on February 25,
2016. Defendant McKinnon filed her Affidavit of fact in response to Plaintiff’s Complaint (ECF
No. 93) on August 30, 2016. Plaintiff requests that the Court strike Defendant McKinnon’s
Affidavit of fact in response to Plaintiff’s Complaint. Plaintiff argues that Defendant’s Affidavit is
not a proper pleading pursuant to Rule 7(a) of the Federal Rules of Civil Procedure and fails to
respond to the allegations set forth in Plaintiff’s Amended Complaint. Motion to Strike (ECF No.
116), pg. 2-3.
Under Rule 12(f) of the Federal Rules of Civil Procedure, the Court may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
Fed. R. Civ. P. 12(f). The essential function of a Rule 12(f) motion is to avoid the expenditure of
time and money that must arise from litigating spurious issues by dispensing with those issues prior
to trial. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th cir. 1993), rev’d on other grounds, 510
U.S. 517, 114 S. Ct. 1023. Striking material pursuant to Rule 12(f) is considered a “drastic remedy”
that is “generally disfavored.” Nevada Fair Housing Center, Inc. V. Clark County, 565 F. Supp.2d
1178 (D. Nev. 2008). Whether to grant a motion to strike lies within the sound discretion of the
district court. Roadhouse v. Las Vegas Metro. Police Dep’t, 290 F.R.D. 535, 543 (D. Nev. 2013).
Additionally, the Court may strike an improper filing under its “inherent power over the
administration of its business.” Spurlock v. F.B.I, 69 F.3d 1010, 1016 (9th Cir. 1995). Similar to
Rule 12(f) motions to strike, striking material under the Court’s inherent power is wholly
discretionary. See Almy v. Davis, No. 2:12–cv–00129–JCM–VCF, 2014 WL 773813, at *4–5
(D.Nev. Feb. 25, 2014); Jones v. Skolnik, No. 3:10-cv-0016-LRH-VPC, 2015 WL 685228, at *2 (D.
Nev. Feb. 18, 2015).
Rule 7(a) of the Federal Rules of Civil Procedure states that only these types of pleadings are
allowed: (1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated
as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a
third-party complaint; and (7) if the court orders one, a reply to an answer. Fed. R. Civ. P. 7(a).
Defendant McKinnon’s Affidavit of Fact in response to Plaintiff’s Complaint (ECF No. 93)
contains statements of fact regarding the case and settlement negotiations. However, Defendant
McKinnon’s Affidavit does not respond to Plaintiff’s Complaint in compliance with the Federal
Rules of Civil Procedure and is not considered a pleading allowed by Rule 7(a).
In addition, Local Rule 7-2(d) provides that “The failure of an opposing party to file points
and authorities in response to any motion shall constitute a consent to the granting of the motion.”
Defendant McKinnon did not file points and authorities in response to Plaintiff’s instant motion to
strike. Therefore, Defendant is considered to have consented to the granting of Plaintiff’s motion
under LR 7-2(d). Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Strike Defendant McKinnon’s
Affidavit (ECF No. 116) is granted.
DATED this 14th day of October, 2016.
GEORGE FOLEY, JR.
United States Magistrate Judge
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