United States District Court, D. Nevada
DARIN J. FRANKLIN, Plaintiff,
TANIA ARGUELLO, Defendants.
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE
the court is Plaintiff's Motion to Strike/Dismiss
Defendants' Untimely Filed Reply (ECF No. 52) to Partial
Motion to Dismiss. (Electronic Case Filing (ECF) No. 54.)
Defendants filed a response (ECF No. 57), and Plaintiff filed
a reply (ECF No. 61).
asserts that he filed his response to Defendants' partial
motion to dismiss electronically on December 20, 2016. (ECF
No. 54 at 2; response at ECF No. 50.) CM/ECF indicated that
the reply was due by December 27, 2016. (Id., CM/ECF
entry at ECF No. 50.) Defendants did not file a request for
an extension of time to file their reply brief, and filed the
brief electronically on January 4, 2017. (Id. at 3;
reply at ECF No. 52.) As such, Plaintiff asks that the court
strike the untimely reply. (Id. at 3-4.)
their response, Defendants state that due to a clerical error
the reply was calendared for January 4, 2017: “Due to a
clerical error, (the Reply was calendared as a Reply to a
Dispositive Motion which is 14 days plus 3 for mailing), the
Defendants' Reply in Support of Defendants' Partial
Motion to Dismiss was filed on January 4, 201.” (ECF
No. 57 at 1:28, 2:1-2.)
Local Rule 7-2(b), the deadline for Defendants to file and
serve a reply is seven days after the response. Therefore,
the reply should have been filed by December 27, 2016.
Federal Rule of Civil Procedure 12(f) provides authority for
the court to strike "redundant, immaterial, impertinent,
or scandalous matter" from a pleading, it does
not authorize the court to strike material contained in other
documents filed with the court. See Fed. R. Civ. P.
12(f). Courts, however, have inherent powers to control their
dockets, see Ready Transp., Inc. v. AAR Mfg., Inc.,
627 F.3d 402, 404 (9th Cir. 2010) (citations omitted), and to
"achieve the orderly and expeditious disposition of
cases." Chambers v. Nasco, Inc., 501 U.S. 32,
43 (1991). "This includes the power to strike items from
the docket as a sanction for litigation conduct."
Ready, 627 F.3d at 404 (citations omitted); see
also Wallace v. U.S.A.A. Life General Agency, Inc., 862
F.Supp.2d 1062, 1068 (D. Nev. 2012) (citing Ready,
627 F.3d at 404). "Such power is indispensable to the
court's ability to enforce its orders, manage its docket,
and regulate insubordinate...conduct." Id.
(citing Mazzeo v. Gibbons, No.
2:08-cv-01387-RLH-PAL, 2010 WL 3910072, at * 2 (D. Nev. Sept.
an act may or must be done within a specified time, the court
may, for good cause, extend the time: (A) with or without
motion or notice if the court acts, or if a request is made,
before the original time or its extension expires; or (B) on
motion made after the time has expired if the party failed to
act because of excusable neglect.” Fed.R.Civ.P.
6(b)(1)(A)-(B). Defendants did not file a request to extend
the time to file their reply before it was due, and they did
not make a motion after the time to file the reply expired.
through its response to Plaintiff's motion, Defendants
have in effect asked the court to extend the time, nunc
pro tunc, to file their reply. Plaintiff opposes that
request in his reply brief. Considering Defendants'
request as a “motion” for purposes of Rule
6(b)(1)(B), the Ninth Circuit applies a four-factor equitable
test in determining “whether a party's failure to
meet a deadline constitutes ‘excusable
neglect.'” Ahanchian v. Xenon Pictures,
Inc., 624 F.3d 1253, 1261 (9th Cir. 2010) (citing
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 395 (1993) and Briones v.
Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.
1997)). The factors are: “(1) the danger of prejudice
to the opposing party; (2) the length of the delay and its
potential impact on the proceedings; (3) the reason for the
delay; and (4) whether the movant acted in good faith.”
Id. The Ninth Circuit clarified how to apply this
test in Bateman v. U.S. Potal Serv., 231 F.3d 1220
(9th Cir. 2000) (court must engage in the four-factor
analysis) and Pincay v. Andrews, 389 F.3d 853 (9th
Cir. 2004) (en banc) (courts may not create per se
“rigid legal rule against late filings attributable to
any particular type of negligence.”). These factors,
and not the Nevada case authority cited by Defendants, govern
the court's analysis here.
the reply was filed eight days late because of a calendaring
error. There is no evidence that this delay prejudiced
Plaintiff, as the delay is minimal. The short delay has had
no real impact on the proceedings, and there is no evidence
of bad faith. Accordingly, the court concludes that
Defendants have established ...