Ace Oilfield Rentals LLC v. Western Dakota and Fabrication LLC et al

Filing 121

ORDER granting 120 Motion to Strike 119 Response to Motion for Partial Summary Judgment,. Signed by Honorable Timothy D. DeGiusti on 8/18/2021. (mb)

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ACE OILFIELD RENTALS, LLC,
Plaintiff,
v.
WESTERN DAKOTA WELDING
AND FABRICATION, LLC,
DOUG KERKVLIET,
TUCKER PANKOWSKI, and
WESDAK WELDING AND
DIESEL, LLC,
Defendants.

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Case No. CIV-15-672-D

ORDER
Before the Court is Plaintiff ACE Oilfield Rentals, LLC’s Motion to Strike
Defendant Doug Kerkvliet’s Motion for Summary Judgment [Doc. No. 120].
Pursuant to LCvR 7.1(g), a party opposing a motion shall file a response within
twenty-one days after the motion is filed and any motion that is not opposed within
the twenty-one days “may, in the discretion of the court, be deemed confessed.”
Defendant Kerkvliet failed to file a response to Plaintiff’s Motion to Strike and that
alone is enough to grant Plaintiff the relief it seeks. However, even apart from
Defendant’s failure to respond, the Court finds that the motion is well-taken.
Defendant Kerkvliet first attempted to move for summary judgment on
January 26, 2021 [Doc. No. 106]. The motion was stricken by the Court because it
was procedurally deficient. See Order dated April 8, 2021 [Doc. No. 118]. Plaintiff
moved for partial summary judgment against Defendant Kerkvliet on February 2,

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2021 [Doc. No. 110]. On March 30, 2021, well after the time to file a response had
passed, Defendant filed a document that purported to be a response to Plaintiff’s
summary judgment motion [Doc. No. 116]. The response was stricken by the Court
for failure to comply with the Court’s Local Rules and with the Federal Rules of
Civil Procedure. See Order dated April 1, 2021 [Doc. No. 117]. On April 12, 2021,
Defendant filed a document that purports to be a response to Plaintiff’s motion for
partial summary judgment as well as a cross-motion for summary judgment [Doc.
No. 119]. Plaintiff requests that this response and cross-motion be stricken because
it was filed out of time and is procedurally deficient.
Although “[a] pro se litigant's pleadings are to be construed liberally and held
to a less stringent standard than formal pleadings drafted by lawyers,” it is not the
proper function of the district court to “assume the role of advocate for the pro se
litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Pro se parties must
“follow the same rules of procedure that govern other litigants.” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (internal quotation
marks omitted). This Court has repeatedly cautioned Defendant Kerkvliet about the
importance of complying with the relevant procedural rules, see Doc. Nos. 104, 117
and 118, but he has once again submitted a document that fails to abide by the Local
Rules of this Court and the Federal Rules of Civil Procedure.
First, Defendant Kerkvliet’s response and cross-motion is untimely. It was filed
well after the deadline to respond and the deadline to file dispositive motions had
passed, and Defendant Kerkvliet never requested permission to file his response out

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of time. Second, the response violates LCvR7.1(c), which provides that “[a] response
to a motion may not also include a motion or a cross-motion made by the responding
party.” Finally, the response once again fails to include a section that responds “by
correspondingly numbered paragraph, to the facts” asserted by Plaintiff, nor does it
cite with particularity to any evidentiary material in the record as required by LCvR
56.1(c). 1
Accordingly, Plaintiff’s Motion to Strike Defendant Doug Kerkvliet’s Motion for
Summary Judgment [Doc. No. 120] is GRANTED. Defendant Kerkvliet’s Response and
Motion for Summary Judgment [Doc. No. 119] is hereby STRICKEN for failure to
comply with LCvR 7.1 and 56.1, and FED. R. CIV. P. 56.
IT IS ORDERED this 18th day of August, 2021.

TIMOTHY D. DeGIUSTI
Chief United States District Judge

1

See also FED. R. CIV. P. 56(c), which provides that a “party asserting that a fact cannot be
or is genuinely disputed must support the assertion by citing to particular parts of materials
in the record . . . or showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.” “If a party fails to properly address another party’s assertion of fact as
required by Rule 56(c), the court may consider the fact undisputed for purposes of the
motion” or “may grant summary judgment if the motion and supporting materials—
including the facts considered undisputed—show that the movant is entitled to it.” FED. R.
CIV. P. 56(e)(2), (3).