Gage v. Golden Corral Corporation

Filing 57

ORDER granting in part and denying in part 48 Motion to Strike. Additionally, the court ORDERS that Plaintiff has until 3/5/2014 to file a supplemental response to the motion for summary judgment, if he so chooses. Golden Corral may file a supplem ental reply within fourteen days of Plaintiff's filing of the supplemental response. The parties are reminded to read the order in its entirety for detailed information. Signed by Senior Judge James C. Fox on 1/31/2014. Copy sent to the plaintiff via US Mail. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-132-F
ALFRED G. GAGE,

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Plaintiff,

v.
GOLDEN CORRAL CORPORATION,

Defendant.

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ORDER

This matter is before the court on the Motion to Strike [DE-48] filed by Defendant Golden
Corral Corporation. The pro se Plaintiff has responded, and this matter is ripe for ruling.
Defendant Golden Corral previously filed a motion for summary judgment [DE-38] seeking
judgment on Plaintiffs claims under Title VII of the Civil Rights Act and theN orth Carolina Equal
Employment Practices Act. Plaintiff timely filed his response, and Golden Corral, after receiving an
extension oftime, filed its reply. Eleven days later, Plaintiff, without permission from the court, filed
a response to Golden Corral's reply brief.
Golden Corral promptly filed the Motion to Strike, arguing that under Federal Rule of Civil
Procedure 12(f) and Local Civil Rule 7.1, Plaintiffs unauthorized "response" to the reply brief must
be stricken for being in violation of the court's rule and for raising new issues to which Golden
Corral does not have the opportunity to reply. Plaintiff opposes the Motion to Strike, stating that the
new issues he raised are all part of his case, and also noting that he is still awaiting discovery from
Golden Corral.
The court agrees with Golden Corral that Plaintiffs "response" [DE-46] was improperly filed

without leave from the court and in violation of the Local Rules. Accordingly, the court will not
consider the "response" when ruling on the motion for summary judgment. The court, however,
declines to "strike" the response, because Rule 12(f) only allows a court to strike pleadings. See Fed.
R. Civ. P. 12(f) ("The court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent or scandalous matter."); see also Int 'l Longshoremen's Assn. Steamships

Clerks Locall624, AFL-CIO v. Virginia Int'l Terminals, Inc., 904 F. Supp. 500, 504 (E.D. Va.
1994) (concluding that summary judgment briefs and affidavits are not pleadings and therefore a
Rule 12(f) motion could not be used to "strike" such documents).
Notwithstanding the foregoing, the court notes that since the parties completed the briefing
of the motion for summary judgment, United States Magistrate Judge James E. Gates allowed, in
part, Plaintiffs motion to compel discovery, and ordered Golden Corral to provide the additional
discovery on or before February 5, 2014. Plaintiff should have an opportunity to respond to the
motion for summary judgment with the benefit of this new discovery. Accordingly, Plaintiff may,
if he so chooses, file a supplemental response to the motion for summary judgment on or before
March 5, 2014. Golden Corral may file a supplemental reply within fourteen days of Plaintiffs
filing of the supplemental response.
For the foregoing reasons, the Motion to Strike [DE-48] is ALLOWED to the extent it asks
the court to exclude the "response" [DE-46] from the court's consideration ofthe pending motion
for summary judgment. It is DENIED in all other respects. Additionally, the court ORDERS that
Plaintiff has until March 5, 2014, to file a supplemental response to the motion for summary
judgment, if he so chooses. Golden Corral may file a supplemental reply within fourteen days of
Plaintiffs filing ofthe supplemental response.

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SO ORDERED.

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This the'? I day of January, 2014.

Senior United States District Judge

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