White v. Baca et al

Filing 91

ORDER that Plaintiff's motion ECF No. 87 is GRANTED IN PART AND DENIED IN PART; request to strike the Council declaration is DENIED; leave to file a sur-reply (which is contained within ECF No. 87 )is GRANTE D; motion to file a late pleading ECF No. 88 is DENIED AS MOOT. Defendants have up to and including 06/22/2018 to file a response to the sur-reply. Signed by Magistrate Judge William G. Cobb on 6/14/2018. (Copies have been distributed pursuant to the NEF - KW)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 HOWARD LEE WHITE, 7 Plaintiff, 8 9 Case No. 3:15-cv-00573-MMD-WGC v. ORDER Re: ECF Nos. 87, 88 ISIDRO BACA, et. al., 10 Defendants. 11 12 Plaintiff has filed a Motion to Strike or in the Alternative Motion for Leave to File 13 Supplemental Declarations in Response to Defendants’ Reply in Support of Motion for Summary 14 Judgment with Declaration of Jacob Council. (ECF No. 87.) He has also filed a Motion to File 15 Late Pleading (ECF No. 88), to allow the late filing of ECF No. 87. Defendants filed a response. 16 (ECF No. 90.) 17 Defendants filed their motion for summary judgment on February 23, 2018. (ECF Nos. 71, 18 71-1 to 71-13 and sealed exhibits ECF Nos. 73-1, 73-2.) After being granted an extension of time, 19 Plaintiff filed his response on April 20, 2018. (ECF No. 83.) Defendants filed their reply in support 20 of their motion for summary judgment on May 3, 2018. (ECF No. 86.) The reply brief is 21 accompanied by a declaration of Jacob Council, who is a Food Service Cook/Supervisor III at 22 Northern Nevada Correctional Center (NNCC), and responds to statements and arguments made 23 in Plaintiff’s opposition to the motion for summary judgment. (See ECF No. 86 at 4, ECF No. 86- 24 1.) 25 Plaintiff moves to strike the declaration, arguing, among other things, that there is no 26 authority for its filing; that Plaintiff cannot respond to it; and, it should have been included with 27 the original motion. 28 While Federal Rule of Civil Procedure 12(f) provides authority for the court to strike 1 "redundant, immaterial, impertinent, or scandalous matter" from a pleading, it does not authorize 2 the court to strike material contained in other documents filed with the court. See Fed. R. Civ. P. 3 12(f). Plaintiff moves to strike a declaration filed in connection with a reply brief supporting a 4 motion for summary judgment, which is not a pleading. Courts, however, have inherent powers to 5 control their dockets, see Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) 6 (citations omitted), and to "achieve the orderly and expeditious disposition of cases." Chambers v. 7 Nasco, Inc., 501 U.S. 32, 43 (1991). "This includes the power to strike items from the docket as a 8 sanction for litigation conduct." Ready, 627 F.3d at 404 (citations omitted); see also Wallace v. 9 U.S.A.A. Life General Agency, Inc., 862 F.Supp.2d 1062, 1068 (D. Nev. 2012) (citing Ready, 627 10 F.3d at 404). "Such power is indispensable to the court's ability to enforce its orders, manage its 11 docket, and regulate insubordinate...conduct." Id. (citing Mazzeo v. Gibbons, No. 2:08-cv-01387- 12 RLH-PAL, 2010 WL 3910072, at * 2 (D. Nev. Sept. 30, 2010)). 13 The court does not find there is a basis for striking the declaration. The declaration was 14 filed as evidence in response to statements made in Plaintiff’s response to the motion for summary 15 judgment. To the extent Plaintiff maintains that he should be able to respond to the statements 16 made in the declaration, his remedy, as he also recognizes, is to seek leave to file a sur-reply. To 17 the extent Plaintiff moves to strike the Council declaration, that aspect of his motion is denied. 18 Local Rule 7-2 contemplates the filing of a motion, response, and reply. “Surreplies [a 19 response to a reply brief] are not permitted without leave of court; motions for leave to file a 20 surreply are discouraged.” LR 7-2(b). Supplemental briefing is likewise prohibited, unless the 21 party obtains leave of court. LR 7-2(g). A supplemental filing made without leave of court may be 22 stricken. LR 7-2(g). 23 The court finds that good cause exists here to grant leave of court for the filing of a sur- 24 reply by Plaintiff, which is contained within ECF No. 87, to address new matters raised in the 25 declaration to which he would otherwise be unable to respond. As such, insofar as Plaintiff’s 26 motion requests leave to file a sur-reply, that aspect of the motion is granted. 27 /// 28 /// -2- CONCLUSION 1 2 Plaintiff’s motion (ECF No. 87) is GRANTED IN PART AND DENIED IN PART. The 3 request to strike the Council declaration is DENIED; however, insofar as he seeks leave to file a 4 sur-reply (which is contained within ECF No. 87), the motion is GRANTED. The motion to file 5 a late “pleading” (ECF No. 88) is DENIED AS MOOT. 6 Defendants shall have up to and including Friday, June 22, 2018 to file a response to the 7 sur-reply. Briefing on the motion for summary judgment will then be complete and the court will 8 address the motion in due course. 9 IT IS SO ORDERED. 10 11 12 13 DATED: June 14, 2018. __________________________________________ WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?