Count's Kustoms, LLC et al v. Frontiera et al

Filing 38

ORDER Denying Plaintiff's 25 Motion to Strike Motion to Dismiss As Untimely. Defendant Frontiera's 37 Motion for Leave for this Court to Accept Late Filing of Motion to Dismiss is Granted. Frontiera's 18 Motion to Dismiss will be considered as a timely motion. Signed by Judge Jennifer A. Dorsey on 6/20/2016. (Copies have been distributed pursuant to the NEF - DL)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
4

Count’s Kustoms, LLC,

2:16-cv-00910-JAD-GWF

5

Plaintiff

Order Re: Motion-to-Dismiss
Briefing

6

v.

7

Joseph Frontiera, et al.,

8

Defendants
_____________________________________

[ECF Nos. 25, 37]

9
ALL RELATED ACTIONS
10
11

When defendant Joseph Frontiera filed his motion to dismiss1 eight minutes after the

12

stipulated deadline expired, plaintiff Count’s Kustoms, LLC moved to strike it as untimely.2

13

Frontiera asks the court to excuse the motion’s untimeliness and consider the motion on its

14

merits.3 I find both motions suitable for disposition without oral argument.4

15

A.

Motion to Strike
Plaintiff cites Federal Rule of Civil Procedure 12(f)(2) as the authoritative basis for its

16
17

request to strike Frontiera’s late motion to dismiss. Rule 12(f) authorizes the court to strike

18

matters from pleadings.5 Rule 7 identifies the civil filings that qualify as pleadings;6 a motion to

19
20
21
22

1

ECF No. 18.

23

2

ECF No. 25.

3

ECF No. 37.

4

L.R. 78-1.

5

Fed. R. Civ. P. 12(f).

6

Fed. R. Civ. P. 7(a)(1)–(7).

24
25
26
27
28

1

dismiss is not among them, so Rule 12(f) has no application here.7 The motion to strike (ECF

2

No. 25) is denied.

3

B.

Motion for Leave

4

Frontiera moves the court to accept his late-filed motion based on a showing of excusable

5

neglect. Counsel explains that the motion was served on all counsel minutes before the deadline,

6

but the filing did not ultimately go through until eight minutes after midnight on the following

7

day.8 Because the motion was timely served on the parties, and the filing delay was mere

8

minutes long, I find excusable neglect and good cause exists. Accordingly, I grant Frontiera’s

9

motion (ECF No. 37) and deem his motion to dismiss (ECF No. 18) timely.

10

Conclusion

11

Accordingly, IT IS HEREBY ORDERED that

12

C

13

Plaintiff’s Motion to Strike Defendant Frontiera’s Motion to Dismiss As Untimely
[ECF No. 25] is DENIED;

C

14

Defendant Frontiera’s Motion for Leave for this Court to Accept Late Filing of

15

Motion to Dismiss [ECF No. 37] is GRANTED. Frontiera’s Motion to Dismiss

16

[ECF No. 18] will be considered as a timely motion.

17

DATED: June 20, 2016

18
_______________________________
_____________________
__ __ _
_ __
__
Jennifer A. Dorsey
nnifer A.
if
y
United States District Judge
nited States District Judg
d ta
ict u

19
20
21
22
23
24
25
26
27
28

7

Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983) (“Under the express
language of the rule, only pleadings are subject to motions to strike.”).
8

ECF Nos. 37 at 3; 37-1 at 3.
2