United States District Court, D. Nevada
TACUMA J. M'WANZA, Plaintiff,
DIRECTOR FOSTER, et al., Defendants.
ORDER RE: ECF NO. 103
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE
the court is Defendants' Motion to Strike the Affidavit
of Kenny Richard. (ECF Nos. 103, 103-1 to 103-7.) Plaintiff
has not filed a response.
filed their motion for summary judgment on March 16, 2017.
(ECF Nos. 86, 86-1 to 86-13.) Plaintiff filed his response on
April 17, 2017. (ECF No. 92.)
then sought an extension of time to file their reply brief.
(ECF No. 95.) The court granted this motion, ordering the
reply brief to be filed by May 4, 2017. (ECF No. 96.)
Defendants never filed a reply brief.
22, 2017, Plaintiff filed a request for leave to submit the
affidavit of Kenny Richard as an exhibit to his response to the
pending dispositive motion. (ECF Nos. 100, 100-1.) The court
granted the request. (ECF No. 101.)
affidavit provides a description of events in October of
2013, which corroborate Plaintiff's version of events
supporting his Fourth Amendment claim in Count III of his
Second Amended Complaint. (ECF No. 100-1.)
addition to not filing a reply brief in support of their
dispositive motion, Defendants did not seek reconsideration
of the court's order granting Plaintiff leave to file the
affidavit of Mr. Richard. Instead, they waited three months
and filed a motion to strike the affidavit on August 29,
2017. (ECF Nos. 103, 103-1 to 103-7.)
counsel asserts that after the motion for leave and the
affidavit were reviewed, counsel questioned the authenticity
of the affidavit and its veracity because the handwriting
resembles Plaintiff's, and the signature on the affidavit
does not match the signature provided by Mr. Richard in other
documentation submitted within the prison. Defense counsel
attempted to schedule a telephone conference with the inmate,
but Mr. Richard refused to participate. Defendants state they
are not handwriting analysts and cannot confirm whether
Plaintiff or Mr. Richard signed the affidavit, and did not
have a procedural vehicle to question Mr. Richard about its
authenticity because Plaintiff did not identify him as a
witness. Therefore, Defendants ask the court to strike the
affidavit on the grounds that it appears to be forged and
because it was submitted after briefing was closed.
Alternatively, Defendants request the court to conduct an
evidentiary hearing requiring Plaintiff to establish the
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.
as Defendants ask the court to strike the affidavit because
it was submitted after briefing on the motion for summary
judgment was closed, Defendants' motion is denied. As
indicated above, Defendants were granted an extension of time
to file their reply brief, but did not do so. Shortly after
the deadline to file the reply brief passed, Plaintiff sought
leave of court to file Mr. Richard's affidavit. The court
granted the motion. While discouraged, this is permissible
under Local Rule 7-2(b). Their claim that the filing after
briefing was closed somehow prejudiced them is belied by the
fact that they waited three months to move to strike the
the second ground asserted for striking the affidavit, the
court agrees that the signature on the affidavit (ECF No.
100-1 at 2) does not match the signature of Mr. Richard on
other documents submitted to NDOC (see ECF Nos.
103-2 at 2, 103-3 at 2, 103-4 at 2). The court, however, is
also not a handwriting analyst or expert and cannot determine
whether it is Plaintiffs handwriting, Mr. Richard's or
someone else's. Defendants assert that the handwriting
resembles Plaintiff s in earlier filings, pointing to ECF No.
12 at 5, but upon comparing the handwriting in the affidavit
with Plaintiffs handwriting there, the court does not
perceive the resemblance. On this record, the court cannot
determine that the affidavit should be stricken.
court declines to conduct an evidentiary hearing on this
issue because the court does not need to rely on the
affidavit in connection with its determination of
Defendants' motion for summary judgment. If Plaintiff
attempts to present the affidavit as an exhibit at trial,
Defendants will have an opportunity to contest its
Defendants' Motion to Strike (ECF No. 103) is