Free Motion to Strike - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General CATHERINE M. BOHLAND Assistant Attorney General State Bar No. 022124 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-4951 Fax: (602) 542-7670 Attorneys For Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Sheldon Walker, Plaintiff, v. Dora Schriro, et al., Defendants.

No: CV04-0691-PHX-MHM (LOA) DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT/CROSS MOTION FOR SUMMARY JUDGMENT (DKT. 43) AND TO STRIKE PLAINTIFF'S STATEMENT OF FACTS IN SUPPORT OF PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. 44)

Defendants1, by and through undersigned counsel, move to strike Plaintiff's Response to Defendants' Motion for Summary Judgment/Cross Motion for Summary Judgment (Dkt. 43) and Plaintiff's Statement of Facts in Support of Plaintiff's Response to Defendants' Motion for Summary Judgment (Dkt. 44). This motion is supported by the following Memorandum of Points and Authorities.

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Dora Schriro, Conrad Luna and Barbara Shearer. Document 47 Filed 04/14/2006 Page 1 of 5

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RESPECTFULLY SUBMITTED this 14th day of April, 2006. Terry Goddard Attorney General s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendant MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS Defendants filed their Motion for Summary Judgment (Dkt. 33) on February 10, 2006, and their supporting Statement of Facts (Dkt. 34) on February 13, 2006.2 Plaintiff filed his Motion for Summary Judgment (Dkt. 35) on February 13, 2006 and his supporting Statement of Facts (Dkt. 36) on February 14, 2005. On March 13, 2006, Defendants filed their Response to Plaintiff's Motion for Summary Judgment. (Dkt. 38.) Plaintiff now files a "Response to Defendant's Motion for Summary Judgment/Cross Motion for Summary Judgment" (Dkt. 43), a separate "Statement of Facts in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment" (Dkt. 44) and "Plaintiff's Objection to Defendants' Statement of Facts in Support of Their Motion for Summary Judgment" (Dkt. 45.) II. LEGAL ARGUMENT A court may grant a motion to strike pursuant to Federal Rule of Civil Procedure 12(f) if the contested language constitutes an "insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. Pro. 12(f). "Redundant

matter" is that which "consists of allegations that constitute a needless repetition of other averments." 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
Defendants filed their Motion for Summary Judgment (Dkt. 33) and supporting Statement of Facts (Dkt. 34) on the same date, however it appears that there is some discrepancy in the Court's docketing. Document 47 Filed 04/14/2006 Page 2 of 5
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§ 1382, at 704 (2d ed.1990). Matter which is "immaterial" is "that which has no essential or important relationship to the claim for relief or the defenses being pleaded." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517, 114 S.Ct. 1023 (1994) (citing 5A Charles Alan Wright & Arthur R. Miller § 1382, at 706-07) (internal citations omitted). "`Impertinent' matter consists of statements that do not pertain, and are not necessary to the issues in question." Id. (citing 5A Charles Alan Wright & Arthur R. Miller § 1382, at 711). "Scandalous" matter "improperly casts a derogatory light on someone, most typically on a party to the action." 5A Charles Alan Wright & Arthur R. Miller § 1382, at 712. A. Cross Motion for Summary Judgment (Dkt. 43) Plaintiff's Cross Motion for Summary Judgment (Dkt. 43) is not permitted under the federal rules or Arizona Local Rule 56.1, which permits a motion, a response, and a reply. Plaintiff previously filed a Motion for Summary Judgment on February 13, 2006. (Dkt. 35.) There is no provision allowing a party to file a Cross Motion for Summary Judgment after they filed a Motion for Summary Judgment. Defendants request the Court strike Plaintiff's Cross Motion because it is not permitted by the Local Rules and because it is redundant. In addition, Plaintiff filed his Response to Defendants' Motion for Summary Judgment in conjunction with his Cross Motion for Summary Judgment, i.e., in one document. (Dkt. 43). This awkward combination is not only in an improper form it is unduly burdensome on Defendants. Defendants are not obligated to "scour" Plaintiff's motion to determine which portions support his Response and which portions pertain to his Cross Motion for Summary Judgment. More importantly, Plaintiff's pleading is difficult to read. Arizona Local Rule 7.1(b) requires that all pleadings filed with the Clerk "be in a fixed-pitch type size no smaller than ten (10) pitch (10 letters per inch) or in a proportional font size no smaller

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than 13 point." Rule 7.1(b), Ariz. R. Civ. P. While Plaintiff is allowed to hand write his pleadings, he is consistently outside the guidelines of Rule 7.1. Without fail, Plaintiff's pleadings are seventeen (17) letters or more per inch with a font size of approximately eight (8). As such, undersigned counsel has extreme difficulty reading Plaintiff's

pleadings. While Defendants are not required to determine which portions of document 43 are in support of his Response, the fixed-pitch of document 43 makes it unduly burdensome on undersigned counsel to distinguish which portions of the pleading support a Response to Defendants' Motion for Summary Judgment. Accordingly, Defendants request the Court strike Plaintiff's (Dkt. 43) in its entirety and order Plaintiff to re-submit his Response to Defendants' Motion for Summary Judgment in the proper form and in the correct fixed-pitch size within ten (10) days from the date of the Court's Order. B. Statement of Facts in Support of Plaintiff's Response to Defendants' Motion for Summary Judgment (Dkt. 44)

Plaintiff filed a Statement of Facts in Support of his Response to Defendants' Motion for Summary Judgment. (Dkt. 44.) Arizona Local Rule 56.1 permits a party opposing a motion for summary judgment to set forth specific facts which establish a genuine issue of material fact. See Rule 56.1, Ariz. R. Civ. P. However, Plaintiff

previously filed a Statement of Facts in Support of his Motion for Summary Judgment (Dkt. 36) and filed his Objections to Defendants' Statement of Facts in Support of Their Motion for Summary Judgment (Dkt. 45). Because Plaintiff is attempting to file two statements of fact to support his motion for summary judgment, his pleading is redundant and should be stricken. Plaintiff is not permitted to file multiple statements of fact under the federal rules or Arizona Local Rule 56.1. As such, Defendants request that document 44 be stricken.

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CONCLUSION For the reasons set forth herein, Defendants request the Court strike Plaintiff's documents 43 and 44 and allow the Plaintiff to file a proper Response to Defendants' Motion for Summary Judgment, and that all future filings comply with Arizona Local Rule 7.1, requiring a fixed-pitch of ten (10) letters per inch. RESPECTFULLY SUBMITTED this 14th day of April, 2006. TERRY GODDARD Attorney General

s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants Original e-filed this 14th day of April, 2006, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to: Sheldon Walker, #102833 ASPC-Eyman-SMUII Post Office Box 3400 Florence AZ 85232 s/A. Palumbo Legal Secretary to Catherine M. Bohland IDS04-0455/RSK:G
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