United States District Court, D. Arizona
ORDER
HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE
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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