Miller v. Gilbert et al

Filing 78

ORDER denying 71 Motion to strike. Defendants' deadline to file their response (Dkt. 66) to plaintiff's motion for contempt (Dkt. 59) is retroactively extended to October 26, 2017. Signed by Magistrate Judge J Richard Creatura.**3 PAGE(S), PRINT ALL**(Christopher Miller, Prisoner ID: 632688)(CMG)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 CHRISTOPHER MILLER, Plaintiff, 11 12 13 14 CASE NO. 3:16-cv-05891-BHS-JRC ORDER DENYING MOTION TO STRIKE v. MARGARET GILBERT, et al., Defendants. 15 16 The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States 17 Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and local 18 Magistrate Judge Rules MJR1, MJR3, and MJR4. 19 Plaintiff has filed a motion to strike the supplemental declaration of non-party Sara 20 Smith. Dkt. 71. Plaintiff contends that the declaration was not filed in a timely manner and that it 21 improperly relies largely on third-party speculation. Id. Defendants reply that the declaration was 22 indeed filed on October 26, 2017, after the October 23, 2017 deadline. Dkt. 72. However, 23 defendants state that this was because the declarant was unavailable before the deadline and 24 ORDER DENYING MOTION TO STRIKE - 1 1 defendants felt it necessary to allow her to directly respond to plaintiff’s allegations in his motion 2 for contempt (Dkt. 68). Dkt. 72. They request the Court retroactively extend the deadline. Id. 3 Plaintiff filed a reply. Dkt. 74. 4 When an act must be done within a certain time, the Court may extend that time if a 5 motion is filed before the deadline, or if a motion is filed after the deadline and the party failed to 6 act “because of excusable neglect.” Fed. R. Civ. P. 6 (b)(1). In addition, at the summary 7 judgment stage, the Court does not look at the admissibility of the form of evidence, but whether 8 it could be presented in an admissible form. Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 9 2003). Here, plaintiff’s motion should be denied. Defendants state that they attempted to contact 10 non-party Smith before the deadline, but were unable. They further argued that her testimony is 11 necessary because plaintiff had accused her of perjury and was asking the Court to hold her in 12 contempt. As defendants note, they filed the declaration three days after the deadline and the late 13 filing does not appear to have prejudiced plaintiff. Therefore, the Court finds that this was 14 excusable neglect and it is appropriate to retroactively extend defendants’ deadline. 15 Further, non-party Smith’s testimony is not inappropriate. The Court may consider 16 testimony presented in an inadmissible form if it would be admissible at trial. Plaintiff argues 17 non-party Smith’s testimony is speculative, based on a doctor’s opinion who never examined 18 plaintiff. Dkt. 71 at 2. However, both her testimony and the doctor’s opinion she relies on are 19 based on plaintiff’s medical record and x-rays contained in that record. Her testimony is 20 therefore based on admissible evidence and is not speculative. Because of this, the Court accepts 21 non-party Smith’s supplemental declaration and will consider it with the rest of the record. 22 23 24 ORDER DENYING MOTION TO STRIKE - 2 1 The Court denies plaintiff’s motion to strike (Dkt. 71). Defendants’ deadline to file their 2 response (Dkt.66) to plaintiff’s motion for contempt (Dkt. 59) is retroactively extended to 3 October 26, 2017. 4 Dated this 11th day of December, 2017. A 5 6 J. Richard Creatura United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER DENYING MOTION TO STRIKE - 3

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