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Haro v. Unknown Burger

United States District Court, D. Arizona

September 12, 2019

Eliseo Solis Haro, Plaintiff,
v.
Unknown Burger, et al., Defendants.

          ORDER

          Honorable Eileen S. Willett United States Magistrate Judge.

         This Order sets forth the Court's rulings on a number of pending Motions (Docs. 58-61, 65).

         I. DISCUSSION

         A. Defendants' “Motion to Leave to File Motion to Strike” (Doc. 58)

         On June 11, 2019, Plaintiff filed a Notification of Expert Witnesses (Doc. 52). In their July 31, 2019 Motion (Doc. 58), Defendants seek leave to file a Motion to Strike Plaintiff's Notification (Doc. 52) pursuant to Federal Rule of Civil Procedure 12(f).

         Under Federal Rule of Civil Procedure 12(f), the Court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Rule 12(f) expressly applies to “pleadings, ” which Rule 7(a) defines as “a complaint and answer; a reply to a counterclaim; an answer to a cross-claim; and a third party complaint and answer. Anything else is a motion or paper.” Morrison v. Mahoney, 399 F.3d 1042, 1046 (9th Cir. 2005) (citing Fed.R.Civ.P. 7(a)). “The Federal Rules of Civil Procedure do not provide for a motion to strike documents or portions of documents other than pleadings. . . . Instead, trial courts make use of their inherent power to control their dockets, Anthony v. BTR Auto. Sealing Sys., 339 F.3d 506, 516 (6th Cir. 2003), when determining whether to strike documents or portions of documents.” Zep Inc. v. Midwest Motor Supply Co., 726 F.Supp.2d 818, 822 (S.D. Ohio 2010).

         Because Plaintiff's Notification of Expert Witnesses (Doc. 52) is not a pleading, the Court may not strike it pursuant to Federal Rule of Civil Procedure 12(f). Federal Rule of Civil Procedure 5(d) provides that “disclosures under Rule 26(a)(1) or (2) and the following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, and requests for admission.” Local Rule of Civil Procedure 5.2 provides that “[a] ‘Notice of Service' of the disclosures and discovery requests and responses listed in Rule 5(d) of the Federal Rules of Civil Procedure must be filed within a reasonable time after service of such papers.” Plaintiff has not “used” his June 11, 2019 disclosure (Doc. 52) in the proceeding. Therefore, Plaintiff's filing of the actual disclosure instead of a “Notice of Service” violates the Federal and Local Rules of Civil Procedure. Accordingly, the filing (Doc. 52) will be stricken. June 11, 2019 is deemed the date of service of Plaintiff's expert witness disclosure on Defendants. Challenges to the adequacy of Plaintiff's disclosure may be raised in a motion in limine. Defendants' “Motion to Leave to File Motion to Strike” (Doc. 58) will be denied.

         B. Plaintiff's “Expedited Motion for Enlargement of Time to the Discovery Deadline” (Doc. 59)

         On May 8, 2019, the Court extended the discovery deadline to August 7, 2019. (Doc. 47). On August 5, 2019, Plaintiff filed an “Expedited Motion for Enlargement of Time to the Discovery Deadline” (Doc. 59). Plaintiff explains that in July 2019, he was “sent out to neuro surgeon consultation at Phoenix Medical Center at which time neuro surgeon instructed Centurian Medical Services to provide a second ‘MRI' because the first ‘MRI' done on June 22, 2017 was too old . . . .” (Id. at 4) (emphasis omitted). Plaintiff then states: “Therefore, a ‘90 day extention [sic] of time to discovery deadline' on top of August 7, 2019 is vital for discovery to determine the severity of Plaintiff's spinal condition and level of worsening, specially when neuro surgeon disclosed the urgent need for spinal cord surgery post or after new ‘MRI.'” (Id.). Ongoing medical treatment that Plaintiff has received does not necessitate an extension of the discovery deadline. Instead, updated medical records should be produced pursuant to Federal Rule of Civil Procedure 26(e)(1).

         Rule 26(e)(1) provides:

A party who has made a disclosure under Rule 26(a)- or who has responded to an interrogatory, request for production or request for admission-must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.

Fed. R. Civ. P. 26(e)(1); see also Arthur v. Atkinson Freight Lines Corp., 164 F.R.D. 19 (S.D.N.Y.1995) (holding that under Rule 26(e), the plaintiff had a duty to supplement prior disclosures and produce updated medical records where plaintiff's medical treatment for his ...


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