Carter v. Seterus et al

Filing 41

MEMORANDUM DECISION AND ORDER: Plaintiff's Motion to Strike Defendants' Joint Motions to Dismiss and for Joinder 36 is DENIED. Plaintiff's Conditional Motion to Extend Time to Oppose Defendants' Motions to Di smiss 37 is GRANTED IN PART. Plaintiff has twenty (20) days from the date of this Order to file all his oppositions to all of the pending motions. This additional extension is the last extension the court will allow absent exigent circumstance. Signed by Judge Dale A. Kimball on 4/7/17. (dla)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION

ROBERT ALLEN CARTER,
Plaintiff,

MEMORANDUM DECISION
AND ORDER

vs.
Case No. 1:16CV57DAK
FEDERAL NATIONAL MORTGAGE, et
al.,

Judge Dale A. Kimball

Defendants.

This matter is before the court on Plaintiff’s Motion to Strike Defendants’ Joint Motions
to Dismiss and for Joinder [Docket No. 36] and Plaintiff’s Conditional Motion to Extend Time to
Oppose Defendants’ Motions to Dismiss [Docket No. 37].
The court considers Plaintiff’s Motion to Strike to be improper. The text of FRCP 12
allows only a motion to strike matters in a pleading. Fed. R. Civ. P. 12(f). The Tenth Circuit has
stated in an unpublished decision that “[g]enerally . . . motions, briefs, and memoranda may not
be attacked by a motion to strike.” Searcy v. Soc. Sec. Admin, 956 F.2d 278, 1992 WL 43490, at
*1, *4 (10th Cir. 1992) (unpublished opinion). Several district courts in the Tenth Circuit have
also recognized that “‘[o]nly material included in a ‘pleading’ may be the subject of a motion to
strike, and courts have been unwilling to construe the term broadly. Motions, briefs, . . .
memoranda, objections, or affidavits may not be attacked by the motion to strike.’” Estate of
Anderson v. Denny’s Inc., 291 F.R.D. 622, 630 (D.N.M. 2013) (quoting Dubrovin v. Ball Corp.
Consol. Welfare Ben. Plan for Emps., 2009 WL 5210498, at *1 (D. Colo. Dec. 23, 2009).

Moreover, even if there is an historic or common law practice of filing a motion to strike
anything objectionable that is unconnected with the rules of practice, such motions would be
more disfavored than a Rule 12 motion to strike. Waterton Polymer Products USA, LLC v.
EdiZONE, LLC, 2012 WL 4024626, at *1 (D. Utah Sept. 12, 2012) (“Motions to strike under
Rule 12(f) are viewed with disfavor by the federal courts and are infrequently granted.”). If
Plaintiff believes that Defendants have filed improper motions, Plaintiff should explain what is
improper with the motions in his memoranda opposing the motions. Instead of filing a motion
dealing only with a single procedural error, Plaintiff can address any procedural or substantive
issues in a memorandum in opposition to the allegedly objectionable motion.
Specifically, Plaintiff objects to Defendants Paul M. Halliday, Jr. and Halliday, Watkins
& Mann’s motion entitled “Joinder to Motion to Dismiss Filed By Co-Defendants Federal
National Mortgage Association and Seterus, Inc. and Motion to Dismiss and Memorandum in
Support of Motion to Dismiss and Motion for Fees” [Docket No. 26] and Defendants Michael
Kushlan and Talitha Kushlan’s motion entitled “Joinder to Motion to Dismiss Filed By CoDefendants Federal National Mortgage Associations and Seterus, Inc. and Paul M. Halliday Jr.
And Motion to Dismiss and Memorandum in Support of Motion to Dismiss and Motion for
Fees” [Docket No. 29]. Plaintiff’s objection focuses on Local Rule DUCivR 7-1(a)(4), which
provides: “Each party seeking relief from the Court must file its own motion stating the relief
sought and the basis for the requested relief. A party may incorporate by reference the arguments
and reasons set forth in another party’s motion or memorandum to the extent applicable to that
party.”
In this case, even though the title of the motions refer to “joinder,” the motions were not

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filed in the court’s docket as notices of joinder, they were filed as separate motions. Defendants
Paul M. Halliday, Jr. and Halliday, Watkins, and Mann clearly identify the relief sought and the
basis for the requested relief in their own motion in compliance with DUCivR 7-1(a)(4).
Although their motion is entitled a “Joinder,” it provides nine pages of analysis relating to
Defendants and appropriately incorporates by reference the arguments made by the other
Defendants’ motion. Defendants Michael and Talitha Kushlan’s motion also identifies why they
were named in the action and incorporates the motions filed by the other defendants as a basis for
dismissing the claims against them. The court finds no confusion as to the relief sought or the
basis for the relief sought. Therefore, there are no grounds for striking the motions as improper
joinders under DUCivR 7-1(a)(4).
In addition, the court also notes that Plaintiff appears to be asserting Defendants’ motions
are improper because parties represented by the same law firm should file separate motions for
each party. The court does not read DUCivR 7-1(a)(4) to require multiple parties represented by
one law firm to file separate motions. The Advisory Committee Note to DUCivR 7-1(a)(4)
specifically identifies the problem the rule was intending to solve as a problem that had arisen
when there are “two defendants in an action, represented by different counsel” and one files a
Notice of Joinder in the other defendant’s motion. Therefore, although the language in DUCivR
7-1(a)(4) states “[e]ach party seeking relief from the court must file its own motion,” it is not
intended to require several defendants represented by one counsel to file separate motions.
Plaintiff’s reading of the rule would change longstanding motion practices in this district.
However, the rule was intended to merely address a problem with notices of joinder filed by

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parties represented by different counsel.
Based on the above reasoning, the court DENIES Plaintiff’s Motion to Strike Defendants’
Joint Motions to Dismiss and for Joinder. The court GRANTS IN PART Plaintiff’s Conditional
Motion to Extend Time to Oppose Defendants’ Motions to Dismiss. Plaintiff has twenty days
from the date of this Order to file all his oppositions to all of the pending motions. Plaintiff’s
present motions demonstrate that he has had ample time to brief oppositions during the
extensions already stipulated to by opposing counsel. This additional extension is the last
extension the court will allow absent exigent circumstance.
DATED this 7th day of April, 2017.
BY THE COURT:

DALE A. KIMBALL
United States District Judge

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