Haro 200988 v. Burger ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Eliseo Solis Haro, No. CV-18-02666-PHX-GMS (ESW) 10 Plaintiff, ORDER 11 v. 12 Unknown Burger, et al., 13 Defendants. 14 15 16 This Order sets forth the Court’s rulings on a number of pending Motions (Docs. 17 58-61, 65). 18 I. DISCUSSION 19 A. Defendants’ “Motion to Leave to File Motion to Strike” (Doc. 58) 20 On June 11, 2019, Plaintiff filed a Notification of Expert Witnesses (Doc. 52). In 21 their July 31, 2019 Motion (Doc. 58), Defendants seek leave to file a Motion to Strike 22 Plaintiff’s Notification (Doc. 52) pursuant to Federal Rule of Civil Procedure 12(f). 23 Under Federal Rule of Civil Procedure 12(f), the Court “may strike from a pleading 24 an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” 25 Rule 12(f) expressly applies to “pleadings,” which Rule 7(a) defines as “a complaint 26 and answer; a reply to a counterclaim; an answer to a cross-claim; and a third party 27 complaint and answer. Anything else is a motion or paper.” Morrison v. Mahoney, 399 28 F.3d 1042, 1046 (9th Cir. 2005) (citing Fed. R. Civ. P. 7(a)). “The Federal Rules of Civil 1 Procedure do not provide for a motion to strike documents or portions of documents other 2 than pleadings. . . . Instead, trial courts make use of their inherent power to control their 3 dockets, Anthony v. BTR Auto. Sealing Sys., 339 F.3d 506, 516 (6th Cir. 2003), when 4 determining whether to strike documents or portions of documents.” Zep Inc. v. Midwest 5 Motor Supply Co., 726 F.Supp.2d 818, 822 (S.D. Ohio 2010). 6 Because Plaintiff’s Notification of Expert Witnesses (Doc. 52) is not a pleading, the 7 Court may not strike it pursuant to Federal Rule of Civil Procedure 12(f). Federal Rule 8 of Civil Procedure 5(d) provides that “disclosures under Rule 26(a)(1) or (2) and the 9 following discovery requests and responses must not be filed until they are used in the 10 proceeding or the court orders filing: depositions, interrogatories, requests for 11 documents or tangible things or to permit entry onto land, and requests for admission.” 12 Local Rule of Civil Procedure 5.2 provides that “[a] ‘Notice of Service’ of the disclosures 13 and discovery requests and responses listed in Rule 5(d) of the Federal Rules of Civil 14 Procedure must be filed within a reasonable time after service of such papers.” Plaintiff 15 has not “used” his June 11, 2019 disclosure (Doc. 52) in the proceeding. Therefore, 16 Plaintiff’s filing of the actual disclosure instead of a “Notice of Service” violates the 17 Federal and Local Rules of Civil Procedure. Accordingly, the filing (Doc. 52) will be 18 stricken. June 11, 2019 is deemed the date of service of Plaintiff’s expert witness 19 disclosure on Defendants. Challenges to the adequacy of Plaintiff’s disclosure may be 20 raised in a motion in limine. Defendants’ “Motion to Leave to File Motion to Strike” (Doc. 21 58) will be denied. B. Plaintiff’s “Expedited Motion for Enlargement of Time to the Discovery 22 Deadline” (Doc. 59) 23 On May 8, 2019, the Court extended the discovery deadline to August 7, 2019. 24 (Doc. 47). On August 5, 2019, Plaintiff filed an “Expedited Motion for Enlargement of 25 Time to the Discovery Deadline” (Doc. 59). Plaintiff explains that in July 2019, he was 26 “sent out to neuro surgeon consultation at Phoenix Medical Center at which time neuro 27 surgeon instructed Centurian Medical Services to provide a second ‘MRI’ because the first 28 ‘MRI’ done on June 22, 2017 was too old . . . .” (Id. at 4) (emphasis omitted). Plaintiff 1 then states: “Therefore, a ‘90 day extention [sic] of time to discovery deadline’ on top of 2 August 7, 2019 is vital for discovery to determine the severity of Plaintiff’s spinal condition 3 and level of worsening, specially when neuro surgeon disclosed the urgent need for spinal 4 cord surgery post or after new ‘MRI.’” (Id.). Ongoing medical treatment that Plaintiff has 5 received does not necessitate an extension of the discovery deadline. Instead, updated 6 medical records should be produced pursuant to Federal Rule of Civil Procedure 26(e)(1). 7 Rule 26(e)(1) provides: A party who has made a disclosure under Rule 26(a)— 8 or who has responded to an interrogatory, request for 9 production or request for admission—must supplement or correct its disclosure or response: 10 (A) in a timely manner if the party learns that in some 11 material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has 12 not otherwise been made known to the other parties during the 13 discovery process or in writing; or (B) as ordered by the court. 14 Fed. R. Civ. P. 26(e)(1); see also Arthur v. Atkinson Freight Lines Corp., 164 F.R.D. 19 15 (S.D.N.Y.1995) (holding that under Rule 26(e), the plaintiff had a duty to supplement prior 16 disclosures and produce updated medical records where plaintiff’s medical treatment for 17 his alleged injuries was ongoing and materially affected the claim for damages). 18 Plaintiff’s Motion (Doc. 59) does not provide good cause for further extension of 19 the discovery deadline. The Motion therefore will be denied. 20 C. Plaintiff’s “Motion to Compel Discovery Request(s)” (Doc. 60) 21 On January 17, 2019, the Court issued a Scheduling Order setting forth a procedure 22 for resolving discovery disputes. (Doc. 19 at 3). In bold letters, the Court advised the 23 parties that the Court will not consider a motion regarding discovery matters unless (i) the 24 parties have attempted to resolve the matter through personal consultation and sincere 25 effort as required by Local Rule of Civil Procedure 7.2(j) and (ii) the parties have 26 participated in a discovery conference with the Court. The Scheduling Order set forth the 27 requirements for filing a request for a discovery conference, and informed the parties that 28 a request that does not comply with those requirements may be stricken. (Id.). 1 Finally, the Court advised the parties in bold letters that a discovery motion that is filed in 2 noncompliance with the requirements set forth in the Scheduling Order may be stricken. 3 (Id.). 4 Plaintiff’s “Motion to Compel Discovery Request(s)” (Doc. 60) does not comply 5 with the requirements set forth in the Court’s Scheduling Order. Accordingly, it will be 6 stricken. D. Plaintiff’s “Motion for Default Judgment Against Defendants P. Torrez and 7 J. Livingston” (Doc. 61) and Defendants’ “Request for Clarification” (Doc. 8 65) 9 On August 5, 2019, Plaintiff moved for entry of a default judgment against 10 Defendants P. Torrez and J. Livingston. (Doc. 61). 11 Before a default judgment may be entered, the Clerk of Court must first enter 12 default. Fed. R. Civ. P. 55(a) (“When a party against whom a judgment for affirmative 13 relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit 14 or otherwise, the clerk must enter the party’s default.”). After the Clerk of Court has 15 entered default, then a party may request a default judgment. Fed. R. Civ. P. 55(b). 16 Here, service has been returned unexecuted as to Defendants Torrez and Livingston. 17 (Docs. 13, 15). The Clerk of Court has not entered default against Defendants Torrez and 18 Livingston pursuant to Federal Rule of Civil Procedure 55(a). Therefore, Plaintiff’s 19 “Motion for Default Judgment Against Defendants P. Torrez and J. Livingston” (Doc. 61) 20 will be withdrawn as premature. Defendants’ “Request for Clarification” (Doc. 65) will 21 be denied as moot. 22 E. Plaintiff’s May 13, 2019 Filing (Doc. 50) 23 On April 15, 2019, the Court extended Plaintiff’s deadline for filing a motion to join 24 parties and amend the Complaint to May 14, 2019. (Doc. 43). The Order specifically 25 instructed Plaintiff that he must comply with the Federal and Local Rules of Civil 26 Procedure, including Local Rule 15.1. (Id.). Local Rule 15.1(a) provides that: 27 A party who moves for leave to amend a pleading must attach a copy of the proposed amended pleading as an exhibit to the 28 motion, which must indicate in what respect it differs from 1 the pleading which it amends, by bracketing or striking through the text to be deleted and underlining the text to 2 be added. The proposed amended pleading must not 3 incorporate by reference any part of the preceding pleading, including exhibits. 4 The Court construes Plaintiff’s May 13, 2019 filing as a motion for leave to file a 5 First Amended Complaint. (Doc. 50). However, Plaintiff’s lodged proposed First 6 Amended Complaint fails to indicate how it differs from the original Complaint by 7 bracketing or striking through the text to be deleted and underlining the text to be added. 8 “A district court has discretion to adopt local rules. . . . Those rules have ‘the force 9 of law.’” Hollingsworth v. Perry, 558 U.S. 183 (2010) (citation omitted). Hence, both the 10 parties and the Court are bound by the local rules. LRCiv. 83.3(c) (1) (“Anyone appearing 11 before the court is bound by these Local Rules.”); Professional Programs Group v. 12 Department of Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994). A district court’s departure 13 from its local rules is justified only if the effect is “so slight and unimportant that the 14 sensible treatment is to overlook [it].” Id. (internal quotation marks and citation omitted). 15 As Plaintiff has failed to lodge a First Amended Complaint that complies with Local 16 Rule 15.1(a), the Court will deny Plaintiff’s motion for leave to amend the Complaint.1 17 (Doc. 50). 18 II. CONCLUSION 19 Based on the foregoing, 20 IT IS ORDERED denying Defendants’ “Motion to Leave to File Motion to Strike” 21 (Doc. 58). 22 IT IS FURTHER ORDERED striking Plaintiff’s Notification of Expert Witnesses 23 (Doc. 52). 24 25 26 1 U.S. Dominator, Inc., 768 F.2d at 1102 n.1 (“Contrary to the defendants’ assertions, Dominator’s motion for leave to amend its complaint was properly treated as a 27 nondispositive motion.”); Morgal v. Maricopa County Bd. of Sup’rs, 284 F.R.D. 452, 458 (D. Ariz. 2012) (“Generally, a motion for leave to amend the pleadings is a nondispositive 28 matter that may be ruled on by a magistrate judge pursuant to 28 U.S.C. § 636(b)(1).”) (citation and internal quotation marks omitted). 1 IT IS FURTHER ORDERED denying Plaintiff's “Expedited Motion for 2|| Enlargement of Time to the Discovery Deadline” (Doc. 59). 3 IT IS FURTHER ORDERED striking Plaintiff's “Motion to Compel Discovery Request(s)” (Doc. 60). 5 IT IS FURTHER ORDERED withdrawing as premature Plaintiff's “Motion for 6|| Default Judgment Against Defendants P. Torrez and J. Livingston” (Doc. 61). 7 IT IS FURTHER ORDERED denying as moot Defendants’ “Request for 8 || Clarification” (Doc. 65). 9 IT IS FURTHER ORDERED construing Plaintiff's May 13, 2019 filing (Doc. 50) || as a motion for leave to file a First Amended Complaint. The Motion is denied for failure 11 |} to comply with Local Rule 15.1(a). 12 Dated this 12th day of September, 2019. 13 14 G bf 15 Honorable Eileen S. Willett 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 -6-