Free Reply to Response to Motion - District Court of Arizona - Arizona

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Russell A. Kolsrud, #004578 Brad M. Thies, #021354 N ORLING, K OLSRUD, S IFFERMAN & D AVIS, P.L.C. 16427 N. Scottsdale Road, Suite 210 Scottsdale, Arizona 85254 (480) 505-0015 Attorneys for ValueOptions, Inc. IN THE UNITED STATES DISTRICT COURT

7 DISTRICT OF ARIZONA 8 Shannon Michael Clark, 9 Plaintiff, 10 v. 11 ValueOptions, Inc., 12 Defendant. 13 14 15 16 17 18 19 20 21 22 By: 23 24 25 26 27 28 /s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc. Defendant ValueOptions, Inc. (?ValueOptions"), through counsel, hereby replies to Plaintiff's Response to ValueOptions' Motion to Strike Second Affidavit of Michael Robinson, LCSW. As set forth in further detail below, Plaintiff's Response fails to sufficiently justify denial of ValueOptions Motion to Strike. This Reply is supported by the pleadings on file, together with the following Memorandum of Points and Authorities. DATED this 17 th day of February, 2006. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C. REPLY TO PLAINTIFF'S RESPONSE TO VALUEOPTIONS' MOTION TO STRIKE SECOND AFFIDAVIT OF MICHAEL ROBINSON, LCSW Case No. CIV 03-1344-PHX-EHC (MS)

Case 2:03-cv-01344-EHC-HCE

Document 210

Filed 02/17/2006

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MEMORANDUM OF POINTS AND AUTHORITIES VALUEOPTIONS' MOTION TO STRIKE IS NOT UNTIMELY District Courts are allowed to consider motions to strike at any point. Williams v. Jader Fuel Co. Inc., 944 F.2d 1388, 1399 (7 th Cir. 1991). Further, the Court has discretion to strike pleadings on its own motion at any time. Wine Markets Int'l, Inc. v. Bass, 177 FRD. 128, 133 (Ed. NY. 1998). It is not unusual for a court to grant motions to strike directed at later filed papers such as declarations in support of a motion for summary judgment containing hearsay or other inadmissible evidence even though not provided for under Rule 12(f). Van Danacher v. Main Motor Sales Co., 109 F.Supp.2d 1045, 1047 (D. MN. 2000). Applying these principals to the facts of this matter, ValueOptions' Motion to Strike is not untimely. Though the Affidavit of Michael Robinson (the "Affidavit") was filed on December 29, 2005, Plaintiff did not urge application of the Affidavit to the pending summary judgment proceedings until his January 9, 2006 filing of his Resubmission of the Affidavit for Consideration by the Court in Summary Judgment Proceedings. [Dkt. 197, 204]. ValueOptions did file the Motion to Strike the Affidavit within twenty-three (23) days of the date of the filing of the resubmission of the Affidavit. This, however, is irrelevant since the Court has the discretion to consider the Motion to Strike at any time pursuant to Rule 12(f), Fed.R.Civ.P. Simply put, Plaintiff's arguments are without merit since the Court has the discretion to consideration the Motion to Strike at any time during the proceeding. II. STANDARD APPLICABLE TO PLAINTIFF Plaintiff's Response parrots the arguments made by Plaintiff in virtually every motion or response he has filed to date. Plaintiff again argues that he is entitled to special consideration by the Court as a pro se litigant. Though pro se litigant's pleadings are to be construed liberally and held to a lesser standard than formal pleadings drafted by counsel, a pro se litigant must ?comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure." Hall v. Bellmon, 935 F.2d 1106, 1110 (10 th Cir. 1991) (emphasis added); see also, Ogden v. San Juan County, 32 F.3d 452, 455 (10 th Cir. 1994). 2 Case 2:03-cv-01344-EHC-HCE Document 210 Filed 02/17/2006 Page 2 of 5

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The Court will not act as an advocate for a pro se litigant. Hall, supra, 935 F.2d at 1110; see also Nielsen v. Price, 17 F.3d 1276, 1277 (10 th Cir. 1994) (citing several cases for the principal that pro se parties must comply with the same procedural rules that govern all other litigants). In particular, Courts have addressed the appropriate standards that must be applied to pro se litigants in summary judgment proceedings. Brown v. Crawford, 996 F.2d 667, 670 (11 th Cir. 1990). The Brown court specifically held that ?a pro se litigant does not escape the essential burden under summary judgment standards of establishing that there was a genuine issue as to a fact material to his case in order to avert summary judgment." Id. (citations omitted). In the present matter, the Affidavit fails to comply with the substantive requirements of the Federal Rules of Evidence. Similarly, the Affidavit fails to meet the requirements of Rule 56 that a plaintiff must oppose summary judgment through an offering of admissible evidence beyond the mere allegations of the Complaint. Brown, supra.

Lessening the burden of these substantive procedural requirements for a pro se litigant would essentially do away with the Federal Rules of Evidence. These rules were

specifically established to guard against contamination of the legal system by unreliable and irrelevant evidence. Adopting Plaintiff's proposed standard would result in an avalanche of inadmissible and irrelevant pleadings and evidence that must be considered by the Court even though they fail to meet the most basic requirements of the Federal Rules. The law does not support denial of ValueOptions' Motion to Strike for the reasons advanced Plaintiff simply because he is a pro se litigant who failed to comply with the subtantive Federal Rules of Evidence. ValueOptions is entitled to have its Motion to Strike granted. III. PLAINTIFF'S ADDITIONAL ARGUMENTS ARE WITHOUT MERIT Plaintiff also appears to argue that it would be appropriate for the Court to consider the Affidavit as something besides an expert affidavit. However, a cursory review of the Affidavit clearly reveals that Plaintiff's intended use of the Affidavit is for that exact purpose. If being offered as the affidavit of a lay person, the conclusory statements of the Affidavit provide even more support for striking it. In addition, Plaintiff fails to cite any 3 Case 2:03-cv-01344-EHC-HCE Document 210 Filed 02/17/2006 Page 3 of 5

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legal authority supporting his argument that he can simply circumvent the bedrock requirements of the Federal Rules of Evidence by classifying the Affidavit as that of a lay person Finally, Plaintiff's request that the Court strike the Affidavit of Dr. Walters lacks merit. Without any specific explanation as to the alleged failures of the Dr. Walters' Affidavit to comply with the mandates of Rule 702 and applicable case law, Plaintiff requests that Dr. Walers' Affidavit be stricken if the Court grants the pending Motion to Strike the Affidavit. First, Plaintiff fails to cite any applicable authority or provide any specific references evidencing the portions of Dr. Walters' Affidavit that allegedly fail to comply with Federal Rules of Evidence. Second, Plaintiff's argument that Dr. Walters was never disclosed to him is unsupported by the record. Specifically, Dr. Walters' Affidavit was disclosed to Plaintiff with ValueOptions' Motion for Summary Judgment and accompanying Statement of Facts filed on October 13, 2004. [Dkt. 57, 58] Plaintiff's arguments simply lack merit. IV. CONCLUSION For the reasons set forth in ValueOptions' Motion to Strike, the Affidavit should be stricken from the record and should not be considered in the pending motion for summary judgment. Additionally, Plaintiff's request that the Affidavit of Dr. Walters be stricken should be denied as Plaintiff failed to cite any applicable authority establishing sufficient justification to support his request. DATED this 17 th day of February, 2006. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C. By: /s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for ValueOptions, Inc.

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Original of the foregoing e-filed with the Clerk and Copies mailed this 17 th day of February, 2006, to: The Honorable Morton Sitver U.S. District Court 401 West Washington Street Phoenix, AZ 85003 Shannon M. Clark #113372 ASPC-Tucson-Santa Rita P.O. Box 24406 Tucson, AZ 85734-4406 Plaintiff pro per /s/ Brad M. Thies

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