United States District Court, D. Nevada
ORDER RE: ECF NOS. 210, 211, 212, 213
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE
the court are four motions to strike filed by Defendants.
(ECF Nos. 210, 211, 212, 213.) Defendants seek to strike
Plaintiff's declaration and exhibits filed at ECF Nos.
195, 196197, 198. Plaintiff filed a response to each of the
motions to strike. (ECF Nos. 215, 216, 217, 218.) Defendants
did not file reply briefs.
the court points out that Defendants' argument directly
contradicts the argument made in their response to
Plaintiff's own motion to strike. There, Defendants
fervently argue that a motion to strike only applies to a
pleading and since Plaintiff did not seek to strike a
pleading, the court could not grant him the relief he sought.
(See ECF No. 166.) Here, in their own motions to
strike, Defendants casually acknowledge that Rule 12 applies
to pleadings, but then argue that courts have stricken
documents other than pleadings. So it is clear in the future,
this is the court's position on motions to strike:
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.
fact, specific local rules authorize the court to strike
filings other than pleadings. See e.g. LR 7-2(g)
("The judge may strike supplemental filings made without
leave of court.").
Defendants argue that Plaintiff's filings, which
Plaintiff describes as declarations and exhibits supporting
claims one to four, are standalone filings without points and
authorities not attached to any motion and are not part of
any briefing cycle. Defendants call the filings fugitive
documents unauthorized by any court order or rule. This
argument is disingenuous.
filed their motion for partial summary judgment on November
29, 2018. (ECF No. 181.) On December 3, 2018, Plaintiff filed
a motion for an extension of time to file his response. (ECF
No. 187.) The court granted his motion, and gave him until
January 25, 2019 to file his response. (ECF No. 189.) Despite
having until January 25, 2019, Plaintiff filed his response
to the motion on December 11, 2018. (ECF No. 193.) That
very same day he filed ECF Nos. 195-198-the
declarations and exhibits Defendants seek to strike. The very
first page of each of Plaintiff's filings states that
because of the high volume of exhibits in this case,
Plaintiff filed the declarations and exhibits in support of
each claim separately so as not to create confusion among the
claims. It is abundantly clear that these declarations and
exhibits are filed in connection with his response to their
motion for partial summary judgment.
motion for summary judgment is limited to 30 pages, but this
is exclusive of exhibits; therefore, Local Rule
7-3(a) would not prohibit Plaintiff's filing of the
exhibits and declarations. General Order No. 2012-01
permanently adopted a program for the electronic submission
of documents in prisoner section 1983 actions. This is
currently in operation at NNCC and LCC. Plaintiff is housed
at NNCC. The program enables NNCC staff to scan to PDF and
email the court all documents presented by prisoners for
filing with the court in section 1983 cases. The court
receives and files the prisoner's documents
electronically into CM/ECF.
2-2 provides that all filed documents with exhibits or
attachments must not be filed as part of the base document
and must be attached as separate files. LR IC 2-2(3)(A).
Typically, an electronically filed document such as a
declaration, must be linked to the document to which it
pertains in the electronic filing system. LR IC 2-2(d). For
example, the exhibits filed along with Defendants' motion
for summary judgment (ECF No. 181) are linked as ECF No.
181-1, etc. In the case of prisoners that are electronically
filing documents through General Order 2012-01, the NNCC law
librarian scans the document received from the inmate and it
is emailed to the court and the docket clerk (not the inmate
or law librarian) will docket the document on CM/ECF. Here,
the declarations and exhibits in ECF Nos. 195-198 were not
linked to Plaintiff's response to the motion for partial
summary judgment; however, this is because Plaintiff made
them separate groupings due to their size, and so they were
docketed into CM/ECF as separate documents instead of linked
documents. This is not Plaintiff's shortcoming, but
simply how the system operates, which the court views overall
as providing a significant benefit to the court, the inmate,
the prison, as well as the Attorney General's Office.
Defendants argue that if Plaintiff was attempting to file a
sur-reply, the document is untimely and sought without leave.
It is unclear how Plaintiff could be filing a sur-reply when
the documents were filed on the same date as his response to
their motion for partial summary judgment, and when
Defendants had not yet filed their reply brief.
these reasons, Defendants' motions to strike (ECF Nos.