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Jones v. Skolnik

United States District Court, D. Nevada

February 18, 2015

HOWARD SKOLNIK, et al., Defendants.


VALERIE P. COOKE, Magistrate Judge.

Before the court are several motions (#391, #403, #412, #417) pertaining to the motion to dismiss by defendants Williams and Cox and defendants' reply to plaintiff's opposition thereto. Also before the court is a filing by plaintiff (#419) related to defendant Skolnik's motion to dismiss. Having reviewed the motions and other papers, these orders follow.

I. Plaintiff's Motion to Strike the Motion to Dismiss (#391)

In short, the basis for plaintiff's motion to strike is that defendants' motion to dismiss is untimely. He so argues because defendants motion, filed through counsel, was due no later than November 6, 2014.

A. Background

When the District Court overruled (#315) defendants' objection to an order by this court (#225), defendants Williams and Cox became parties to this action once again. Thereafter, the court issued an order on August 25, 2014 that provided instructions to the parties regarding the service of Williams and Cox (#350). The order directed the Attorney General's Office ("AG") to indicate within ten days whether it would accept service on behalf of the same. ( Id. at 1.) In the occasion that the AG declined service, the court instructed plaintiff to file a motion of unserved defendants, by which the court would order service via the United States Marshals Service ("USMS"). ( Id. at 1-2.) In pertinent part, the order stated: "[i]f the Attorney General accepts service of process for any named defendant(s), such defendant(s) shall file and serve an answer or other response to the complaint within FOURTEEN (14) days from the date the Attorney General files the notice of acceptance of service." ( Id. at 2) (emphasis original).

In compliance with the court's order, the AG filed notice (#351) on September 5, 2014, which stated that the AG was unable to accept service on behalf of Williams and Cox because it "ha[d] a duty to preserve their jurisdictional defenses and to avoid inadvertently waiving them." ( Id . at 1.) The AG also provided an address for service of both defendants. ( Id. at 1-2.) Accordingly, plaintiff filed a motion of unserved defendants (#353) on September 8, and the court issued summons on September 16 (#359, 360). The standard summons form used by the USMS to serve Williams and Cox stated, in pertinent part: "Within 21 days after service of this summons on you... you must serve an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure." (#360 at 1, #360-1 at 1.)

The USMS served Williams and Cox on October 16, 2014. (#376 at 1, #376-1 at 1.) Therefore, under the terms of the summonses, their responsive pleading deadline was November 6. One day before the deadline, the AG filed a limited notice of appearance (#381), in which counsel indicated that she would appear on behalf of Williams and Cox for the "sole purpose of filing a motion challenging jurisdiction." ( Id. at 1.) Apparently construing the court's August 25 order as applicable because the AG was now appearing on defendants' behalf, she stated that "such motion will be filed on or before November 19, 2014, " which was fourteen days past the date of her notice of appearance. ( See id. at 1 (citing #350 at 2).) Defendants Williams and Cox then filed their motion to dismiss on November 19 (#387).

B. Standard

Two separate sources of authority empower federal courts to strike a pleading. First, pursuant to Federal Rules of Civil Procedure, the "court may strike from a pleading... any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). Rule 12(f) motions are drastic remedies and, as such, are generally disfavored by federal courts. Chan v. Pan W. Corp., No. 2:10-cv-1317-KJD-PAL, 2011 WL 830237, at *1 (D. Nev. Mar. 4, 2011). Under the Rule's plain language, the grant of such motions, even if meritorious, is left to the court's discretion. See Fed.R.Civ.P. 12(f) (stating that the court "may" strike a pleading).

The Rule identifies four particular bases for a motion to strike. "Redundant" matters are duplicative and repetitive. "Immaterial" matters are those that have "no bearing on the controversy before the court." Chan, 2011 WL 830237, at *1. "Impertinent" matters are those that "are not responsive to the issues that arise in the action...." Id. A matter is "scandalous" when it casts a "cruelly derogatory light on a party or other person." Id.

Second, the court may strike an improper filing under its "inherent power over the administration of its business." Spurlock v. F.B.I., 69 F.3d 1010, 1016 (9th Cir. 1995); see also Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (inherent powers are tools for "control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases"); Atchison, Topeka & Santa Fe Ry. v. Hercules, Inc., 146 F.3d 1071, 1074 (9th Cir. 1998). The court "has inherent authority to... promulgate and enforce rules for the management of litigation...." Spurlock, 69 F.3d at 1016.

Motions to strike under the inherent power, as with Rule 12(f) motions, are wholly discretionary. See Almy v. Davis, No. 2:12-cv-00129-JCM-VCF, 2014 WL 773813, at *4-5 (D. Nev. Feb. 25, 2014). When weighing its discretionary authority, courts in this District have considered whether granting the motion would "further the overall resolution" of the action, and also the existence of ...

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