Free Order on Motion to Strike - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 filed. Various procedural motions are before the court, none of which should have been All of them could have been resolved by consultation among the parties. vs. Paul Woodcock and Bobbi Woodcock, Defendants. Timothy A. Shimko, Sr., Plaintiff, David Goldfarb, Rhona Goldfarb, Richard Ross, Marcia Ross, Milton Guenther and Kathi Guenther, vs. Timothy A. Shimko, Sr. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CV-04-78-PHX-FJM CV-05-1387-PHX-FJM [Consolidated] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

ORDER

Nevertheless, we rule as follows. The court has before it "Plaintiff's Motion to Strike Defendant Goldfarbs' Motion for Summary Judgment" (doc. 197) because it is untimely by two weeks. However, the Goldfarbs have not filed an independent motion for summary judgment, but have simply
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joined in the Woodcocks' motion which was timely. Accordingly, IT IS ORDERED DENYING "Plaintiff's Motion to Strike Defendant Goldfarbs' Motion for Summary Judgment" (doc. 197). The court has before it "Plaintiff's Motion to Strike Defendant Woodcocks' Amended Motion to Dismiss Claims and Motion for Summary Judgment and Motion for Sanctions" (doc. 200). Plaintiff complains that while Woodcocks' original motion was within the deadline set in the Rule 16 scheduling order, the document entitled "Amended Motion" filed some eighteen days later, is not. The Woodcocks claim that the plaintiff's tardy response to discovery requests after the deadline for filing motions justifies the slight delay. While we agree that the tardy discovery would have warranted the filing of a motion for leave to supplement the original motion, it did not authorize the defendants to file a new motion for summary judgment after the deadline. Accordingly, "Plaintiff's Motion to Strike Defendant Woodcocks' Amended Motion to Dismiss Claims and Motion for Summary Judgment and Motion for Sanctions" is GRANTED in part and DENIED in part, to the extent that the amended motion will not be considered an independent motion (doc. 200). Instead, we will construe it as a motion for leave to supplement the Woodcocks' original motion and allow it to be filed. Accordingly, the document entitled "Defendant Woodcocks' Amended Motion to Dismiss Claims and Motion for Summary Judgment; and Motion for Sanctions" (doc. 198), will be construed as a supplemental memorandum in support of the defendant Woodcocks' original motion (doc. 190). The court has before it "Plaintiff's Motion to Extend their Deadline by Seven (7) Days to Submit their Opposition Papers to the Defendants' Motions for Summary Judgment" (doc. 203). Because we have allowed the Woodcocks to file a supplement in support of their motion, we will, on our own motion, create the following briefing schedule for the pending motions for summary judgment. Plaintiff's memorandum in opposition to all motions for summary judgment shall be filed no later than May 12, 2008. No further extensions shall be granted. All memoranda in reply shall be filed no later than May 26, 2008. No further

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extensions shall be granted. Accordingly, "Plaintiff's Motion to Extend their Deadlines by Seven (7) days" is DENIED on grounds of mootness (doc. 203). Finally, the court has before it "Plaintiff's Motion to Strike `Defendant Milton & Kathi Guenther (Guenthers) Request to be added to Defendant Woodcocks' Amended Motion to Dismiss Claims and Motion for Summary Judgment; and Motion for Sanctions" (doc. 204). The Guenthers have filed a document asking that they be allowed to use

defenses discovered in connection with Woodcocks' case. (doc. 201). The Guenthers had an opportunity to file memoranda in connection with the claim against them but failed to do so. Accordingly, we entered our Findings and Conclusions on March 13, 2008 (doc. 181). We did not grant Rule 54(b) certification. Thus, it "may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Rule 54(b), Fed. R. Civ. P. Whether we should amend that order will abide the outcome of the case against the Woodcock, Ross and Goldfarb defendants. IT IS THEREFORE ORDERED DENYING "Plaintiff's Motion to Strike Defendant Milton and Kathi Guenther's (Guenthers) Request to be Added to Defendant Woodcocks' Amended Motion to Dismiss Claims and Motion for Summary Judgment; and Motion for Sanctions." (doc. 204). IT IS FURTHER ORDERED DENYING the Guenthers "Motion to be Added to the Defendant Woodcocks' amended motion to Dismiss Claims and Motion for Summary Judgment; and Motion for Sanctions" (doc. 201) without prejudice to the court's right to adjust the order of March 13, 2008 as a function of what happens to the claims against the defendants Woodcock, Ross and Goldfarb. The parties are advised once again to abide by the rules of court. Plaintiff is specifically advised that motions to strike under Rule 12(f), Fed. R. Civ. P., apply only to "pleadings" within the meaning of Rule 7(a), Fed. R. Civ. P., and not motions and other

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papers under Rule 7(b), Fed. R. Civ. P. Therefore, the pleadings having been closed, all parties are advised not to file any more motions to strike. Any objection could be contained in a parties' written response or reply. See also, LRCiv 7.2(m). DATED this 2nd day of May, 2008.

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