Hines v. Martin Marietta Material Inc.

Filing 30

ORDER granting 22 Motion to Strike. Signed by Magistrate Judge William A. Webb on 1/3/2012. A copy of the order was mailed to the pro se plaintiff. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:12-CV-00496-BO
CHARLES HINES,
Plaintiff,
v.

MARTIN MARIETTA
MATERIAL, INC.,
Defendant.
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ORDER

This cause comes before the Court upon Defendant’s motion to strike certain documents
filed by Plaintiff. (DE-22). Plaintiff has not responded, and the time for doing so has expired.
Accordingly, the motion to strike is ripe for adjudication. For the reasons stated herein, the
motion to strike is granted.
After receiving leave to proceed in forma pauperis, Plaintiff filed his pro se complaint
against Defendant on August 10, 2012, asserting claims of employment discrimination and
retaliation.

Defendant timely answered the complaint.

(DE-14).

On November 5, 2012,

Plaintiff filed a response (DE-16) to Defendant’s answer, as well as a document titled “Discovery
Request.” (DE-17). Defendant contends that Plaintiff’s response and discovery request are
improper under the Federal Rules of Civil Procedure and requests that both documents be removed
from the docket.
Federal Rule of Civil Procedure 7(a) provides that a reply to an answer is permitted only “if
the court orders one.” Plaintiff’s response constitutes a reply to Defendant’s answer. However,
the Court did not order Plaintiff to file a reply to Defendant’s answer. Rule 12(f) of the Federal
Rules of Civil Procedure provides that “[t]he court may strike from a pleading an insufficient
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defense or any redundant, immaterial, impertinent, or scandalous matter . . . on motion made by a
party either before responding to the pleading or, if a response is not allowed, within 21 days after
being served with the pleading.” Defendant timely filed its motion to strike within twenty-one
days after being served with Plaintiff’s response. As Plaintiff’s response is not permitted under
Federal Rule of Civil Procedure 7(a), Defendant’s motion to strike Plaintiff’s response is
GRANTED. See Daniels v. Nichols, No. 5:09-CT-3152-FL, 2011 U.S. Dist. LEXIS, at *10
(E.D.N.C. Feb. 25, 2011) (unpublished) (granting the defendant’s motion to strike the plaintiff’s
reply to the defendant’s answer).
With regard to Plaintiff’s discovery request, Federal Rule of Civil Procedure 5(d)(1)
provides that interrogatories and requests for documents or tangible things “must not be filed” with
the court “until they are used in the proceeding or the court orders filing.” The time for Defendant
to respond to Plaintiff’s discovery request has not yet expired, and there is presently no basis for
using any discovery in this proceeding. Further, the Court has not ordered the parties to file with
the Court any of the discovery that has been conducted or may be conducted in this action.
Accordingly, Plaintiff’s discovery request should not have been filed with the Court, and
Defendant’s motion to strike the discovery request filing is therefore GRANTED. The granting
of this motion does not relieve Defendant from responding to Plaintiff’s interrogatories and
requests pursuant to the applicable Federal Rules of Civil Procedure.
For these reasons, Defendant’s motion to strike (DE-22) is GRANTED.
DONE AND ORDERED in Chambers at Raleigh, North Carolina this 3rd day of January,
2013.

____________________________________
WILLIAM A. WEBB
UNITED STATES MAGISTRATE JUDGE

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