United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA UNITED SLATES DISTRICT JUDGE
Pending
before the Court are two motions to strike filed by Plaintiff
(Docs. 134, 136), as well as a request by Plaintiff for more
time to file a response to one of the motions he's
attempting to strike (Doc. 140).
The
First Motion: On September 4, 2018, defendant Vemma
International Holdings, Inc. (“Vemma Holdings”)
filed a motion to dismiss. (Doc. 114.) Plaintiff did not file
a response until October 4, 2018. (Doc. 125.) That filing was
untimely-responses are due within 14 days of when a motion is
filed. See LRCiv 7.2(c). As a result, Vemma Holdings
pointed out the untimeliness of the response in its reply,
which was filed on October 11, 2018. (Doc. 128 at 1
[“Plaintiff failed to timely respond to Vemma
Holdings' motion, missing the deadline by 16
days.”].) More than a month later, Plaintiff filed a
“motion to strike” the portions of Vemma
Holdings' reply addressing the timeliness issue. (Doc.
134.) The motion alternatively requests leave to file a
sur-reply. Id.
The
Second Motion: On November 8, 2018, defendant Haresh
Mehta filed a motion to dismiss. (Doc. 131.) On November 19,
2018, Plaintiff filed a motion to strike, arguing that
Mehta's motion should be stricken because it should have
been filed earlier. (Doc. 136.) This filing did not address
the merits of Mehta's motion. Id. On December 7,
2018-long after the 14-day deadline for responding on the
merits to Mehta's motion had expired-Plaintiff filed a
motion for an extension of time to respond to the motion in
the event the motion to strike is denied. (Doc. 140.)
Both of
Plaintiff's motions to strike will be denied. In the
first motion, Plaintiff contends that Vemma Holdings
shouldn't be allowed, in its reply, to mention the
untimeliness of Plaintiff's response-let alone seek
relief on that basis-because the untimeliness issue
wasn't raised in Vemma Holdings' original motion.
(Doc. 134 at 1-2; see also Doc. 138 at 2
[“[T]he portion of Vemma Holdings' Reply regarding
the timeliness of Plaintiff's Opposition memoranda [w]as
a new argument on the merits. Such new arguments are not
permitted in reply briefs . . . .”].) This argument is
baseless. When Vemma Holdings filed its motion, it presumably
believed that Plaintiff was familiar with, and would comply
with, the basic rules and deadlines that are applicable in
federal court. Thus, Vemma Holdings didn't need to
preemptively and hypothetically argue in its motion that it
would be entitled to relief if Plaintiff ignored the deadline
for filing a response. And once Plaintiff ignored the
deadline, it was perfectly appropriate for Vemma Holdings to
mention the issue in its reply. Burnham v. City of
Rohnert Park, 1992 WL 672965, *1 n.2 (N.D. Cal. 1992)
(“[R]eply briefs are limited in scope to matters either
raised by the opposition or unforeseen at the time of the
original motion.” (emphasis added)). Moreover,
even if Plaintiff had been sandbagged by an argument
improperly raised for the first time in a reply-which, as
noted, didn't happen here-there still would be no need
for Plaintiff to move to “strike” the new
arguments. AIRFX.com v. AirFX LLC, 2012 WL 129804,
*1 (D. Ariz. 2012) (“Defendant moves to strike
plaintiffs' reply . . ., arguing that the reply raises
new arguments . . . . [A] motion to strike in this case is
unnecessary, as we do not consider new arguments raised in a
reply.”).[1]
The
second motion to strike (Doc. 136) also lacks merit. In a
nutshell, Plaintiff's position is that Mehta's motion
to dismiss was untimely filed. The proper way to advance such
a claim is to file a response to the motion and, in that
response, raise the issue of untimeliness as a reason why the
motion should be denied. A motion to strike is not the
correct vehicle for advancing such a claim.
Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880,
885 (9th Cir. 1983) (district court erred by striking a
motion it deemed unmeritorious instead of denying the motion:
“A movant's right to appeal from an order denying a
motion is worth little if the denying judge can strike the
motion from the record altogether. Approval of the district
court's action would establish a procedure that, if
abused, could shield erroneous district court orders from
review. We hold that F.R.Civ.P. 12(f) should not be construed
as allowing this undesirable result.”). See also
Collaborative Continuing Educ. Council, Inc. v. Starks Realty
Grp., Inc., 2017 WL 5714727, *1 (D. Ariz. 2017) (noting
that only pleadings (not motions) may be the subject of a
motion to strike under Rule 12(f), that Local Rule 7.2(m)
tightly restricts the circumstances under which a motion to
strike may be filed, and that “[c]ourts view motions to
strike disfavorably ‘because they are often used to
delay and because of the limited importance of the pleadings
in federal practice'” (citation omitted)).
Finally,
the Court will grant, albeit grudgingly, Plaintiff's
motion for an extension of time to file a response to
Mehta's motion to dismiss. (Doc. 140). It is unfortunate
that Plaintiff has wasted so much of the Court's and the
other parties' time by filing baseless motions to strike.
Nevertheless, denying the extension request would have the
practical effect of granting Mehta's motion to dismiss,
see LRCiv 7.2(i), and it is preferable for matters
to be resolved on the merits after adversarial presentation.
Accordingly,
IT IS ORDERED that:
(1) The
motion to strike, or alternatively for leave to file a
sur-reply (Doc. 134) is DENIED;
(2) The
motion to strike (Doc. 136) is DENIED; and
…
…
(3) The
motion for extension (Doc. 140) is GRANTED,
such that Plaintiff has 14 days from the date of this Order
to file a response to Mehta's motion to dismiss. No.
further extension requests will be considered.
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