Free Motion to Strike - District Court of Colorado - Colorado

Case 1:04-cv-01049-EWN-KLM

Document 135

Filed 11/03/2005

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01049-EWN-OES MITCHELL THEOPHILUS GARRAWAY, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants. ________________________________________________________________________ DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S OPPOSITION TO DEFENDANTS' REPLY ________________________________________________________________________ The individual defendants, through the undersigned counsel, move pursuant to Fed. R. Civ. P. 12(f) to strike "Plaintiff's Opposition to Defendant's [sic] Reply to Response to Motion for Summary Judgment and Plaintiff's Declaration Pursuant to Rule 15(a) F.R.CIV.P." (Doc. 134) and state therefor: 1. Plaintiff seeks to submit a response to defendants' reply to plaintiff's

response to the defendants' motion for summary judgment. 2. Plaintiff did not seek leave of court to file this motion, nor did he consult the

undersigned counsel pursuant to D.C.COLO.LCivR 7.1 before filing it. Rule 7.1 does not authorize the filing of a sur-reply. Fed. R. Civ. P. 15(a) only allows a party to amend a pleading if no response has been filed, which is not the case here. Under Rule 15, plaintiff is required to seek leave of court to amend his pleading.

Case 1:04-cv-01049-EWN-KLM

Document 135

Filed 11/03/2005

Page 2 of 3

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Therefore, it should be stricken as improper under Fed. R. Civ. P. 12(f).

DATED this 3rd day of November, 2005. Respectfully submitted, WILLIAM J. LEONE UNITED STATES ATTORNEY

s/Mark S. Pestal Mark S. Pestal Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 (303) 454-0100 Fax: (303) 454-0408 [email protected]

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Case 1:04-cv-01049-EWN-KLM

Document 135

Filed 11/03/2005

Page 3 of 3

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on November 3, 2005, I electronically filed the foregoing with the Clerk of Court using the ECF system. [email protected] In addition, I hereby certify that I have mailed the document to the following non CM/ECF participants: Mitchell Thephilus Garraway #39096-066 Florence-USP P.O. Box 7000 Florence, CO 81226 And emailed it to: Benjamin J. Brieschke Chris Synsvoll Attorney-Advisor Legal Services Department Florence Correctional Complex P.O. Box 8500 Florence, CO 81226 [email protected] s/Michael A. Miller Michael A. Miller Legal Assistant United States Attorney's Office 1225 17th Street, Suite 700 Denver, Colorado 80202

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