Smith v. Homes et al

Filing 45

ORDER denying 42 Motion to Strike. Signed by Magistrate Judge William G. Cobb on 4/28/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WILLIE SMITH,

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Plaintiff,
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vs.
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HOMES, et al.,
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Defendants.
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______________________________________)

3:13-cv-00202-MMD-WGC
ORDER
re: Defendants' Motion to Strike
(Doc. # 42)

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Before the court is Defendants' Motion to Strike (Doc. # 42) Plaintiff's Response (Doc. # 41) to

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Defendants' Motion to Dismiss (Doc. # 36.) Defendants seek to strike Plaintiff's Opposition (Doc. # 41)

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because it is untimely. (Doc. # 42.)

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Plaintiff has opposed Defendants' motion to strike. (Doc. # 43.) Plaintiff represents that after

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Defendants' motion was filed, his personal property was taken from him and he was placed in suicide

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watch. According to the Plaintiff, this occurred on March 4, 2014. (Id.) On March 6, 3014, Plaintiff was

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transferred by Nevada Department of Corrections (NDOC) to Northern Nevada Correctional Center and

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again was placed on suicide watch. (Id.) Plaintiff was later housed in the mental health unit. (Id. at 4.)

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His personal property was returned to him on March 27, 2013. He states he advised the court of his

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change of address (Doc. # 40, 4/2/14), and thereafter commenced work on his opposition to Defendants'

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motion to dismiss. (Id. at 5.) Plaintiff asks for relief because of "excusable circumstances."

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Plaintiff also states he believed this case had been stayed. (Doc. # 43 at 5). While the case had

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been stayed for 90 days on July 26, 2013, to allow the parties to discuss settlement (Doc. # 5), that stay,

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however, terminated on October 24, 2013.

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Under the circumstances, Plaintiff's failure to timely file his opposition is excusable. It is, of

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course, the court's preference any substantive issues, particularly dispositive motions, be resolved on the

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merits. Although the case had not been stayed, and although Plaintiff perhaps should have sought leave

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of court to file a tardy response, in the exercise of the court's discretion, Defendants' motion to strike

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(Doc. # 42) is DENIED.

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IT IS SO ORDERED.

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DATED: April 28, 2014.

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_____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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