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Biliack v. Paul Revere Life Insurance Co.

United States District Court, D. Arizona

November 15, 2019

Mark Biliack, Plaintiff,
Paul Revere Life Insurance Company, et al., Defendants.



         The Court held a hearing on November 13, 2019, related to a number of Plaintiff's recent filing irregularities. (Doc. 437). Steven Dawson, Sander Dawson, and Anita Rosenthal of Dawson & Rosenthal PC appeared on behalf of Plaintiff. Theona Zhordania of Sheppard Mullin Richter & Hampton, LLP., appeared on behalf of Defendants. A number of issues were discussed on the record.

         A. Late-Filed Documents

         Prior to the dispositive motion deadline, numerous extensions of time were granted by the Court, including extensions of Plaintiff's response deadline. After the granted extensions, Plaintiff's Responses were due on October 28, 2019. (Doc. 390). Plaintiff did not timely file complete Responsive pleadings by that date, necessitating a late-filed Motion to file documents a day late. (Doc. 405). The Court allowed Plaintiff to file all Responsive pleadings by October 29, 2019. (Doc. 408). Plaintiff continued to file “corrected” Responsive pleadings well into the following week, including a corrected Response filed as a Notice of Errata[1] on November 4, 2019, a week after the deadline. (Doc. 414). On November 6, 2019, more than a week after the extended deadline, additional documents were lodged under seal. (Docs. 416 and 417). Defendants filed a Motion to Strike. (Doc. 415).

         At 4:00 p.m. on November 6, 2019, the Court struck 19 of Plaintiff's filings for a number of reasons documented in the Court's Order. (Doc. 419). The Court allowed Plaintiff another oppourtunity to file complying Responsive pleadings, and set a deadline of Noon on November 8, 2019. (Id.) Plaintiff failed to meet this deadline. As the Court noted at the hearing, only five documents were filed prior to Noon, with a dozen others coming in throughout the remainder of the afternoon and early evening. (Docs. 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, and 436).

         The Court will retroactively extend the filing deadline to 4:00 p.m. on November 8, 2019, and allow Plaintiff to proceed with all documents filed by that time rather than striking all documents filed after Noon. However, Responsive pleadings filed after 4:00 p.m. on November 8, 2019 will be stricken by the Court as being late-filed, and for other independent reasons discussed below. As a result of the late filings, the Court will allow Defendants additional time to file Reply briefs.

         B. Issues with Operative Responses

         The Court discussed a number of problems that still remain with Plaintiff's Responses.[2] (Docs. 420, 421, and 425). As discussed at the hearing, Plaintiff's Responses contain citations to various statements of fact that do not exist in the record.[3]The Court will not rely on any fact statement in a Response that is not supported by a statement of fact or corresponding exhibit. See LRCiv. 56.1(b) (“Each additional fact must be set forth in a separately numbered paragraph and must refer to a specific admissible portion of the record where the fact finds support.”); see also LRCiv. 56.1(e) (“Memoranda of law . . . must include citations to the specific paragraph in the statement of facts that supports assertions made in the memoranda regarding any material fact on which the party relies in support or opposition to the motion.”); see also Guatay Christian Fellowship v. Cty. of San Diego, 670 F.3d 957, 987 (9th Cir. 2011) (“[J]udges are not like pigs, hunting for truffles buried in briefs.”). At this juncture, the Court will not allow Plaintiff a third oppourtunity to file complying Statements of Fact. To do so would result in prejudice to Defendants.

         C. Unredacted Responses and Sealed Exhibits

         At the hearing, the Court discussed the numerous redacted portions of Plaintiff's Responses. When asked why unredacted versions of the Responses were not lodged on the docket, Plaintiff's counsel stated that unredacted versions would be arriving via FedEx, and acknowledged that unredacted versions had not been lodged under seal on the docket with a Motion to Seal those Responses.[4]

         Moreover, the parties informed the Court that some of the redacted portions of the Responses were supported by the confidential exhibits that Plaintiff made multiple unsuccessful attempts to correctly file.[5] (Doc. 435). An Emergency Motion to Withdraw those publicly filed documents was filed by Plaintiff. (Doc. 436). As an initial matter, those exhibits were filed on the public docket after 5:00 p.m. on November 8, 2019, and were thus late-filed.[6] Moreover, Plaintiff seeks to have these documents removed from the docket. As stated at the hearing, the Court will grant the Emergency Motion to withdraw the lodged exhibits in part, and will strike those documents from the record. However, the Court will not allow Plaintiff a fourth oppourtunity to correctly file those exhibits.[7]

         If there are statements in the Responses that do not have citations to statements of facts or exhibits in evidence, the Court will not rely on those statements. However, for purposes of having a clean record, Plaintiff shall file unredacted versions of his Responses under seal, along with a Motion to Seal the unredacted Responses. Plaintiff should take care that the correct procedures are followed to ensure the unredacted Responses are not filed on the public docket. No substantive changes to the Responses shall be made.

         D. Sanctions

         Lastly, the Court addresses the issue of sanctions. Defendants' counsel shall submit an itemized billing record of all time billed, and at what hourly rates, for preparing Reply briefs to Plaintiff's stricken Responses. (Docs. 392, 393, 394, ...

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