Howarth v. Patterson ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Morgan Howarth, No. CV-19-00726-PHX-ESW 10 Plaintiff, ORDER 11 v. 12 Ryan Patterson, et al., 13 Defendants. 14 15 16 The Court has reviewed Plaintiff’s “Motion to Strike Defendants’ Untimely and 17 Improper Replies in Support of Motion to Set Aside Entry of Default” (Doc. 102). Plaintiff 18 is correct that Defendant Patterson Remodeling, LLC filed its Reply (Doc. 100) in support 19 of its Motion to Set Aside an Entry of Default (Doc. 91) one day late under the current 20 version of Federal Rule of Civil Procedure 6. However, after reviewing Plaintiff’s 21 Response (Doc. 93) opposing the setting aside of the default, the Court found that it was in 22 the interests of justice to review Defendant Patterson Remodeling, LLC’s replies to the 23 arguments made in Plaintiff’s Response. The Court finds no prejudice to Plaintiff by the 24 one-day late Reply (Doc. 100). Plaintiff’s Motion to Strike (Doc. 102) will be denied as to 25 Defendant Patterson Remodeling, LLC’s Reply (Doc. 100). See United States v. Toilolo, 26 No. CR 11-00506 LEK, 2013 WL 12212909, at *2 (D. Haw. Nov. 18, 2013) (“While the 27 Court is not without annoyance at late filings, it cannot conclude that Defendants were 28 unduly prejudiced by the one-day late filing, nor can it conclude that justice would be 1 || served by striking the Government’s Motion.”); Rogers v. JPMorgan Chase Bank, N.A., 2012 WL 2190900, at *6 (W.D. Wash. June 13, 2012) (denying motion to strike one- 3|| day late summary judgment opposition because its untimely filing did not prejudice opposing party). 5 The Court, however, does find good cause to strike the Reply filed by Defendants 6 || Ryan Patterson and Patterson Homes, LLC as those Defendants did not join Defendant 7\| Patterson Remodeling, LLC’s Motion to Set Aside an Entry of Default (Doc. 91). 8 Accordingly, 9 IT IS ORDERED denying Plaintiff's “Motion to Strike Defendants’ Untimely and || Improper Replies in Support of Motion to Set Aside Entry of Default” (Doc. 102) as to 11 || Defendant Patterson Remodeling, LLC’s Reply (Doc. 100). 12 IT IS FURTHER ORDERED granting Plaintiff's “Motion to Strike Defendants’ 13 | Untimely and Improper Replies in Support of Motion to Set Aside Entry of Default” (Doc. 14]| 102) as to Defendants Ryan Patterson and Patterson Homes, LLC’s Reply (Doc. 101). 15 IT IS FURTHER ORDERED striking Defendants Ryan Patterson and Patterson Homes, LLC’s Reply (Doc. 101). 17 IT IS FURTHER ORDERED that the parties shall comply with the current version 18 || of the Federal and Local Rules of Civil Procedure. . 19 Dated this 21st day of February, 2020. , . 20 Honorable Eileen S. Willett 21 United States Magistrate Judge 22 23 ' The Court’s August 8, 2019 Order (Doc. 57) inadvertently referenced the prior version of Rule 6(d), which allowed three days to be added to the time in which a party must act within a specified time after service 1f service was effected by electronic means. Rule 6(d) no longer provides for an additional three days to be added to a deadline if service || was effected by electronic means. Although Defendants Ryan Patterson and Patterson Homes, LLC state in their February 12, 2020 filing (Doc. 104 at 2) that they “have been 26 guided” by the prior Order (Doc. 57), the Court notes that Defendants Ryan atterson and atterson Homes, LLC did not dispute Plaintiff's assertion that they filed their Reply in 27 support of their Motion to Dismiss (Doc. 82) approximately a week late under the current version of Rule 6(d). (Docs. 84, 85). On November 13, 2019, the Court granted □□□□□□□□□□□ || Motion to Strike (Doc. 84) their untimely Reply (Doc. 82) and denied Defendants’ Motion for an Extension of Time (Doc. 85). (Doc. 89). _2-