United States District Court, D. Nevada
ORDER MOTION TO STRIKE [ECF NO. 17]; MOTION TO EXTEND
TIME [ECF NO. 28]
Ferenbach United States Magistrate Judge.
the Court are plaintiff Jason Goldsby's motion to strike
(ECF No. 17) and his motion to extend time (ECF No. 28).
Plaintiff's motions are denied.
January 4, 2019, plaintiff, a pro se litigant, filed
the operative amended complaint pursuant to 42 USC 1983,
1985, and 1986 for violations of the Fourth Amendment. (ECF
No. 9). On March 4, 2019, defendants the City of Henderson
Police, Sgt. Robert Hart #353, and Det. Douglas Lynaugh #1554
filed their answer and affirmative defenses. (ECF No. 15). On
March 18, 2019, plaintiff filed his motion to strike the
defendants' answer. (ECF No. 17). On April 1, 2019,
defendants filed their opposition to plaintiff's motion
to strike their answer. (ECF No. 19). Plaintiff did not file
a reply. On April 16, 2019, this Court entered a discovery
plan and scheduling order, ordering that, “discovery
shall be completed on or before September 3,
2019.” (ECF 24 at 1) (emphasis in
original). The scheduling order also stated that:
EXTENSIONS OF DISCOVERY: Pursuant to LR 26-4, an extension of
the discovery deadline will not be allowed without a showing
of good cause. All motions or stipulations to extend
discovery shall be received by the Court at least twenty-one
(21) days prior to the date fixed for completion of discovery
by this Scheduling Order, or at least twenty-one (21) days
prior to the expiration of any extension thereof that may
have been approved by the Court. (Id. at 2). The
scheduling order also stated that dispositive motions must be
filed by October 3, 2019.
(Id.) On September 27, 2019, plaintiff filed his
motion requesting leave of court to extend time to continue
discovery. (ECF No. 28). Plaintiff also asks this Court to
compel responses to written discovery within the motion
requesting an extension of time. (Id. at 2). On
October 2, defendants filed their motion for summary
judgment, which is pending before the Court. (ECF No. 29). On
October 10, 2019 the defendants filed its opposition to
plaintiff's motion requesting an extension of time. (ECF
No. 32). Plaintiff did not file a reply.
argues in his motion to strike that all the defendants'
affirmative defenses fail, and he gives detailed factual
explanations regarding why each of the 31 defenses fail. (ECF
No. 17 at 16). Defendants argue that their answer and
affirmative defenses are proper because they have provided a
reasonable response to the allegations in the complaint and
that each defense provides fair notice. (ECF 19 at 3).
argues in his motion requesting leave to continue discovery
that plaintiff needs discovery to be extended because
defendants have refused to respond to plaintiff's written
discovery. (ECF No. 28 at 4). Defendants argue in their
opposition that plaintiff's underlying requests for
admission were untimely because they were served less than 30
days before the discovery deadline. (ECF No. 32 at 2).
Defendants also argue that plaintiff filed his discovery
motion 21-days after the expiration of the discovery deadline
and failed to show good cause or excusable neglect.
(Id.) Defendants also argue that plaintiff failed to
meet and confer. (Id.)
Rule of Civil Procedure 12(f) states that “[t]he court
may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” The purpose of a Rule 12(f) motion to strike
is “to avoid the expenditure of time and money that
must arise from litigating spurious issues by dispensing with
those issues prior to trial.” Whittlestone, Inc. v.
Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010)
(quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524,
1527 (9th Cir. 1993), rev'd on other grounds,
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)).
matter stricken under Rule 12(f) must be either: (1) an
insufficient defense; (2) redundant; (3) immaterial; (4)
impertinent; or (5) scandalous. Whittlestone, Inc.,
618 F.3d at 973-74. Whether to grant a motion to strike lies
within the discretion of the district court. Id. at
973. “A [Rule] 12(f) motion is a drastic remedy and is
generally disfavored by federal courts.” Nevada
Fair Housing Center, Inc. v. Clark County, 565 F.Supp.2d
1178, 1187 (D. Nev. 2008). The District of Nevada has
expressly declined to adopt the
Twombly and Iqbal standard in determining
whether to strike an affirmative defense. Garity v.
Donahoe, No. 2:11-cv-01805-MMD-PAL, 2014 U.S. Dist.
LEXIS 17912 at 7 (D. Nev. Feb. 11, 2014), citing to
Ferring B.V. v. Watson Labs., Inc., No.
3:11-cv-00481-RCJ-VPC, 2012 U.S. Dist. LEXIS 23616 at 2 (D.
Nev. Feb. 24, 2012). “The key to determining the
sufficiency of pleading an affirmative defense [pursuant to
Federal Rule of Civil Procedure 8(c)] is whether it gives
plaintiff fair notice of the defense.” Wyshak v.
City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979);
citing to Conley v. Gibson, 355 U.S. 41, 47-48, 78
S.Ct. 99, 2 L.Ed.2d 80 (1957); 5 Wright & Miller Federal
Practice and Procedure, § 1274 at 323.
Rule of Civil Procedure 16(b)(4) governs the modification of
scheduling orders… it provides that “[a]
schedule may be modified only for good cause and with the
judge's consent.” Terrell v. Cent. Washington
Asphalt, Inc., No. 2:11-CV-142-APG-VCF, 2015 WL 461823,
at 4 (D. Nev. Feb. 4, 2015), objections overruled, (D. Nev.
July 20, 2015) (citing Fed.R.Civ.P. 16(b)(4)). Local Rule
26-7 (c) states that, “[d]iscovery motions will not be
considered unless the movant (1) has made a goodfaith effort
to meet and confer as defined in LR IA 1-3(f) before filing
the motion and (2) includes a declaration setting forth the
details and results of the meet-and confer conference about
each disputed discovery request.” Rule 26-4 states,
A motion or stipulation to extend any date set by the
discovery plan, scheduling order, or other order must, in
addition to satisfying the requirements of LR IA 6-1, be
supported by a showing of good cause for the extension. A
motion or stipulation to extend a deadline set forth in a
discovery plan must be received by the court no later than 21
days before the expiration of the subject deadline. A request
made within 21 days of the subject deadline must be supported
by a showing of good cause. A request made after the
expiration of the subject deadline will not be granted unless
the movant also demonstrates that the failure to act was the
result of excusable neglect. See LR 26-4. “Courts
consider four factors when determining whether neglect is
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.” McGowan v. Credit Mgmt. LP, No.
2:14-CV-00759-APG, 2015 WL 5682736, at 14 (D. Nev. Sept. 24,
2015) (citing Bateman v. U.S. Postal Service, 231
F.3d 1220, 1223- 24 (9th Cir. 2000) (citations omitted)); see
also Walls v. Corecivic, Inc., No.
2:14-CV-02201-KJD-PAL, 2018 WL ...