Jones v. Skolnik et al

Filing 422

ORDER denying 391 , 412 , and 417 Motions to Strike; and granting 403 Motion to Extend Time. Please see attached for further details. Signed by Magistrate Judge Valerie P. Cooke on 2/18/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHRISTOPHER A. JONES,

3:10-cv-00162-LRH-VPC

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Plaintiff,

ORDER

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v.

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HOWARD SKOLNIK, et al.,

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Defendants.

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Before the court are several motions (#391, #403, #412, #417) pertaining to the motion to

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dismiss by defendants Williams and Cox and defendants’ reply to plaintiff’s opposition thereto.

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Also before the court is a filing by plaintiff (#419) related to defendant Skolnik’s motion to dismiss.
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Having reviewed the motions and other papers, these orders follow.

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I.

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Plaintiff’s Motion to Strike the Motion to Dismiss (#391)
In short, the basis for plaintiff’s motion to strike is that defendants’ motion to dismiss is

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untimely. He so argues because defendants motion, filed through counsel, was due no later than
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November 6, 2014.
A.

Background
When the District Court overruled (#315) defendants’ objection to an order by this court

(#225), defendants Williams and Cox became parties to this action once again. Thereafter, the court

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issued an order on August 25, 2014 that provided instructions to the parties regarding the service of
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Williams and Cox (#350). The order directed the Attorney General’s Office (“AG”) to indicate
within ten days whether it would accept service on behalf of the same. (Id. at 1.) In the occasion

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that the AG declined service, the court instructed plaintiff to file a motion of unserved defendants, by

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which the court would order service via the United States Marshals Service (“USMS”). (Id. at 1-2.)

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In pertinent part, the order stated: “[i]f the Attorney General accepts service of process for any

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named defendant(s), such defendant(s) shall file and serve an answer or other response to the

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complaint within FOURTEEN (14) days from the date the Attorney General files the notice of

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acceptance of service.” (Id. at 2) (emphasis original).

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In compliance with the court’s order, the AG filed notice (#351) on September 5, 2014,

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which stated that the AG was unable to accept service on behalf of Williams and Cox because it
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“ha[d] a duty to preserve their jurisdictional defenses and to avoid inadvertently waiving them.” (Id.

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at 1.) The AG also provided an address for service of both defendants. (Id. at 1-2.) Accordingly,

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plaintiff filed a motion of unserved defendants (#353) on September 8, and the court issued

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summons on September 16 (#359, 360). The standard summons form used by the USMS to serve
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Williams and Cox stated, in pertinent part: “Within 21 days after service of this summons on you . . .

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you must serve an answer to the attached complaint or a motion under Rule 12 of the Federal Rules

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of Civil Procedure.” (#360 at 1, #360-1 at 1.)

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The USMS served Williams and Cox on October 16, 2014. (#376 at 1, #376-1 at 1.)

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Therefore, under the terms of the summonses, their responsive pleading deadline was November 6.
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One day before the deadline, the AG filed a limited notice of appearance (#381), in which counsel

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indicated that she would appear on behalf of Williams and Cox for the “sole purpose of filing a

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motion challenging jurisdiction.” (Id. at 1.) Apparently construing the court’s August 25 order as

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applicable because the AG was now appearing on defendants’ behalf, she stated that “such motion

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will be filed on or before November 19, 2014,” which was fourteen days past the date of her notice
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of appearance. (See id. at 1 (citing #350 at 2).) Defendants Williams and Cox then filed their
motion to dismiss on November 19 (#387).

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B.

Standard

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Two separate sources of authority empower federal courts to strike a pleading.

First,

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pursuant to Federal Rules of Civil Procedure, the “court may strike from a pleading . . . any

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redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Rule 12(f) motions

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are drastic remedies and, as such, are generally disfavored by federal courts. Chan v. Pan W. Corp.,

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No. 2:10-cv-1317-KJD-PAL, 2011 WL 830237, at *1 (D. Nev. Mar. 4, 2011). Under the Rule’s
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plain language, the grant of such motions, even if meritorious, is left to the court’s discretion. See

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Fed. R. Civ. P. 12(f) (stating that the court “may” strike a pleading).

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The Rule identifies four particular bases for a motion to strike. “Redundant” matters are
duplicative and repetitive. “Immaterial” matters are those that have “no bearing on the controversy

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before the court.” Chan, 2011 WL 830237, at *1. “Impertinent” matters are those that “are not

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responsive to the issues that arise in the action . . . .” Id. A matter is “scandalous” when it casts a

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“cruelly derogatory light on a party or other person.” Id.

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Second, 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); see also

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Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (inherent powers are tools for “control necessarily

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vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition

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of cases”); Atchison, Topeka & Santa Fe Ry. v. Hercules, Inc., 146 F.3d 1071, 1074 (9th Cir. 1998).

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The court “has inherent authority to . . . promulgate and enforce rules for the management of

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litigation . . . .” Spurlock, 69 F.3d at 1016.
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Motions to strike under the inherent power, as with Rule 12(f) motions, are wholly
discretionary. See Almy v. Davis, No. 2:12-cv-00129-JCM-VCF, 2014 WL 773813, at *4-5 (D. Nev.

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Feb. 25, 2014). When weighing its discretionary authority, courts in this District have considered
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whether granting the motion would “further the overall resolution” of the action, and also the

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existence of “excessive and repetitive filings [that] have already slowed and complicated

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proceedings . . . .” Id. at *5.

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C.

Analysis

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The court hereby DENIES plaintiff’s motion to strike (#391). As a factual matter, plaintiff is
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correct that defendants’ motion is untimely. Under the terms of the August 25 order, defendants

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could respond within fourteen days of counsel’s appearance only if the AG accepted service on their

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behalf. (See #350 at 2.) Because the AG did not do so, the provision to which counsel pointed in

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her notice (#381) did not apply. Accordingly, plaintiff asks the court to strike the motion as a
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fugitive document. His argument, however, lacks merit. The court is to strike “fugitive documents,”

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which are those papers “not allowed” by the Local or Federal Rules. See Reiger v. Nevens, No.

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3:12-cv-00218-MMD-VPC, 2014 WL 537613, at *3 (D. Nev. Feb. 14, 2014). Yet defendants’

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motion is not a fugitive one. It is, in fact, a required responsive pleading under Federal Rule 12,

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albeit an untimely one. That a required pleading or motion is late does not render it a fugitive
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document, for the applicable rules allow the filing, but simply by a different deadline. Accordingly,
the court would err in striking the motion as fugitive.

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The proper inquiry is whether the court has the power to strike the motion to dismiss, and, if

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so, whether the circumstances so merit under the court’s discretionary authority. For the following

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reasons, the court declines to strike defendants’ motion to dismiss. Because no basis exists under
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Rule 12(f) to strike a pleading as untimely, see Fed. R. Civ. P. 12(f) (identifying only “redundant,

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immaterial, impertinent, or scandalous” matters), the court’s power to strike in this instance arises in
its discretionary inherent power. The court can envision various scenarios that might follow an order

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striking the motion. Nearly all of them lead back to defendants eventually refiling the motion, and
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the court’s subsequent consideration thereof—with further motion practice, delay, and discord

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between the parties and counsel in the interim. As the parties well know, this case is entering its fifth

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year of litigation. Yet the parties are here engaged in a bitter dispute over the court’s consideration

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of early-stage Rule 12 motions. As such, it is plain that granting plaintiff’s motion would not

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“further the overall resolution of this action[,]” Almy, 2014 WL 773813, at *5; to the contrary, it
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would only facilitate further delay.

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A second reason bolsters the court’s conclusion. Although he is not alone in this regard,

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plaintiff has repeatedly slowed and complicated proceedings in this action through unproductive

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motion practice. See id. Accordingly, the court denies plaintiff’s motion to strike. The court shall

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consider the motion, plaintiff’s opposition, and defendants’ reply in due course.

Briefing on

defendants’ motion to dismiss (#387) has concluded.
II.
Motion to Strike Defendants’ Reply (#412), and Motion to Strike the Motion to Strike
(#417)
The court DENIES plaintiff’s motion to strike defendants’ reply (#412), and DENIES

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defendants’ motion to strike plaintiff’s motion to strike (#417).

The court acknowledges the

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arguments and clarifications of the parties in these motions and papers, and also plaintiff’s notice of

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withdrawal of the original motion (#420).
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III.

Motion for Extension of Time (#403)
The court GRANTS defendants’ motion (#403) for an extension of the reply brief deadline

to January 9, 2015. The reply is, therefore, timely filed.

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IV.

Docket No. 419
Finally, the court hereby notifies the parties that it construes docket no. 419 as plaintiff’s

opposition to defendant Skolnik’s motion to dismiss (#414), even though it is not captioned as such.

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If plaintiff did not so intend, he shall file notice with the court to that effect, and the court will

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entertain any motions to strike that are filed in due course.

Additionally, because the court

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anticipates the caption of the paper and characterization of the same in CM/ECF may have created

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confusion as to its purpose, defendants’ period in which to reply to the opposition shall commence

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from the date of this order.
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IT IS SO ORDERED.

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DATED: February 18, 2105.

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______________________________________
UNITED STATES MAGISTRATE JUDGE

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