Bement v. Cox et al

Filing 96

ORDER that Plaintiff's Motion to Strike (ECF No. 92) is denied. Signed by Judge Miranda M. Du on 5/8/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BARON BEMENT,

Case No. 3:12-cv-00475-MMD-WGC
Plaintiff,

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ORDER

v.
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JAMES G. COX, an individual, GREG
SMITH, an individual, STATE OF
NEVADA ex rel. its DEPARTMENT OF
CORRECTIONS, a governmental entity,
DOES I-V,

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Defendants.
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Before the Court is Plaintiff Baron Bement’s Motion to Strike or Summarily Deny

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Defendant’s Motion for Summary Judgment (“Motion to Strike”) (ECF No. 92). The Court

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has reviewed Defendant State of Nevada Department of Corrections’ (“NDOC”) response

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(ECF No. 94) and Plaintiff’s reply (ECF No. 95).

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Plaintiff argues that this Court should strike Defendant’s second Motion for

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Summary Judgment (ECF No. 90) because Defendant does not assert that there has been

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an intervening change in controlling law, new evidence or an expanded factual record, or

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a need to correct clear error or prevent manifest injustice. (ECF No. 92 at 3 (citing Brazill

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v. Cal. Northstate Coll. of Pharm., LLC, No. CIV. 2:12-12-18 WBS GGH, 2013 WL

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4500667, at *1 (E.D. Cal. Aug. 22, 2013)).

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Defendant argues (1) that the Court has previously authorized the parties to file

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dispositive motions; (2) that Plaintiff’s Motion to Strike is not permitted under Fed. R. Civ.

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P. 12(f); (3) that Plaintiff’s cited authority is distinguishable and contrary to Plaintiff’s

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claims; and (4) that Defendant’s Motion for Summary Judgment is neither frivolous nor

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repetitive and manifest injustice will result if Defendant is foreclosed from seeking

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summary judgment. (ECF No. 94 at 5-9.)

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“[D]istrict courts have discretion to entertain successive motions for summary

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judgment . . . .” Hoffman v. Tonnemacher, 593 F.3d 908, 911 (9th Cir. 2010). Moreover,

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Fed R. Civ. P. 12(f) only allows courts to strike redundant, immaterial, impertinent, or

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scandalous matter from pleadings. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885

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(9th Cir. 1983). Motions are not pleadings. Id.; see also Fed. R. Civ. P. 7(a) (listing

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pleadings). Accordingly, the Court will deny Plaintiff’s Motion to Strike. In addition, the

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Court will deny Plaintiff’s alternative request to summarily deny summary judgment

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because Defendant’s Motion for Summary Judgment is neither frivolous or repetitive.

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The Court notes that the parties made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of the motion before

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the Court.

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It is therefore ordered that Plaintiff’s Motion to Strike (ECF No. 92) is denied.

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DATED THIS 8th day of May 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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