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