Middleton v. Carrington Mortgage Holdings, LLC et al

Filing 83

ORDER denying 62 Motion to provide proof of agency; ORDER denying 66 Motion to Strike; Signed by Magistrate Judge Carl W. Hoffman on 3/1/2018. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ERVIN MIDDLETON,

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Plaintiff,
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v.
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CARRINGTON MORTGAGE HOLDINGS,
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LLC, et al.,
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Defendants.
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_______________________________________ )

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Case No. 2:16-cv-01657-RFB-CWH

ORDER

Presently before the Court is pro se Plaintiff Ervin Middleton’s motion to provide proof of

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agency (ECF No. 62), filed on July 14, 2018. Defendants filed a response (ECF No. 62) on July 28,

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2017. Plaintiff did not file a reply.

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Also before the Court is Plaintiff’s motion to strike (ECF No. 66), filed on August 7, 2017.

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Defendant Carrington Mortgage Services, LLC filed a response (ECF No. 67) on August 18, 2017,

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and Defendants ALG Trustee, LLC, Atlantic Law Group, LLC, and Linda Orlans filed a separate

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response (ECF No. 68) on August 21, 2017. Plaintiff did not file a reply.

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I.

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Motion to Provide Proof of Agency
Plaintiff’s motion to provide proof of agency is combined with his response to Defendants’

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pending motions to dismiss. The Court will consider the motion to dismiss at a later time, at this

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point, only the motion to provide agency is under consideration.

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As a preliminary matter, the Court notes that, although claims made by pro se plaintiffs are to

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be construed liberally, they are still bound by the federal rules of procedure. Ghazali v. Moran, 46

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F.3d 52, 54 (9th Cir. 1995). Here, Plaintiff moves the Court to order Defendants to provide “proof

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of agency,” alleging that counsel for Defendants are “Foreign Agents” acting for a “Foreign State.”

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However, Plaintiff does not provide any authority for this Court to issue such an order. Plaintiff does

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cite to a California Supreme Court case (Hilyar v. Union Ice Co., 45 Cal. 2d 30 (1955)), but that case

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is not a binding authority for this Court. In any event, it is unclear what support Hilyar was meant to

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provide to Plaintiff’s motion, or how it is relevant at all to the facts of this case. Under Local Rule 71

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2(d), the failure of a moving party to file points and authorities in support of the motion constitutes a

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consent to the denial of the motion. The Court will therefore deny Plaintiff’s motion for proof of

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agency.

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II.

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Motion to Strike
Plaintiff’s document entitled “Affidavit In Support Of Striking Pleadings of Defendants”

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requests an order from the Court to “strike the pleadings of Defendants.” Based on a review of

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Plaintiff’s document, it appears that he is referring to Defendants’ response to Plaintiff’s motion to

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provide proof of agency. The Court will therefore construe Plaintiff’s document as a motion to strike

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Defendants response (ECF No. 63).

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Under Federal Rule of Civil Procedure 12(f), the Court may strike pleadings that are

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redundant, immaterial, impertinent, or scandalous. Plaintiff’s motion alleges that Defendants’

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response is scandalous and impertinent, but does not specify what aspects of the response are flawed.

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Instead, Plaintiff discusses allegations against Defendants themselves, which are not pertinent to

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Defendants’ response. Plaintiff only briefly addresses the substance of Defendants’ response,

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arguing that based on Hilyar v. Union Ice Co., Defendants’ claim that they do not have to provide

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proof of agency is “absolutely ludicrous and should be struck for that reason alone[.]” Again, the

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Court does not find that the Hilyar case is binding, or even applicable, to the facts of this case. The

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Court will therefore deny the motion to strike.

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IT IS THEREFORE ORDERED that Plaintiff’s motion to provide proof of agency (ECF No.
62) is DENIED.

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IT IS FURTHER ORDERED that Plaintiff’s motion to strike (ECF No. 66) is DENIED.

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DATED: March 1, 2018

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_________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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