Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14

PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. MAYFIELD Assistant U.S. Attorney Arizona State Bar No. 4848 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Martha Slaughter-Payne, CIV-03-2300-PHX-ROS Plaintiff, v. Anthony Principi, Secretary, Department of Veterans Affairs, Defendant. Defendant, Anthony Principi, Secretary Department of Veteran's Affairs, by and through the United States Attorney and the undersigned Assistant United States Attorney, DEFENDANT'S RESPONSE TO MOTION TO STRIKE

15 respectfully submits his Response to plaintiff's Motion to Strike dated October 7, 2005. 16 This response is supported by the attached Memorandum of Points and Authorities and 17 other matters of record. 18 19 20 21 22 23 24 25 Respectfully submitted this 12th day of October 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff's Motion to Strike lacks a good faith basis in law and fact. The Court stated the

26 September 2, 2005 hearing that each side would be permitted eight (8) pages for its 27 memorandum. The defendant complied with this limitation. Although the subsequent Minute 28
1

Case 2:03-cv-02300-ROS

Document 42

Filed 10/12/2005

Page 1 of 4

1 Entry dated September 2, 2005, did not contain this page limitation it did specify that " A jointly 2 filed position statement must be submitted to the court by 10/3/05." Due to time and technical 3 problems it was not possible to file a joint position statement. However, the defendant filed his 4 portion on October 3, 2005 and hand-delivered the Court's courtesy copy the following day. The plaintiff did not serve her position statement on the defendant until it was received 5 6 by fax on October 12, 2005. The defendant's position statement further addressed those fourteen (14) matters outlined 7 in his initial one page statement requested by the Court. Further, it addressed statements both 8 oral and written by plaintiff's counsel during the September 2, 2005 hearing. Finally, it 9 addressed the issue of whether or not sanctions should be imposed by the Court against the 10 defendant as suggested on more than one occasion during the September 2, 2005 hearing. 11 Plaintiff's counsel relies on Local Rule 1.10(j) for imposing sanctions of the defendant. 12 This Local Rule was abolished on December 1, 2004. In addition to this error, the defendant was 13 not presenting a request for sanctions against the plaintiff for discovery violations. Rather, the 14 defendant was responding to the Court's Order to present a memorandum regarding the pending 15 discovery disputes raised by the plaintiff. However, it should be noted that prior to the entry of 16 this Court's Order on August 26, 2005 which set the September 2, 2005 hearing, plaintiff's 17 counsel did not comply with Local Rule 7.2 (j) and apparently made ex parte contact with the 18 court as the Order of August 26, 2005 came as a complete surprise to defense counsel. 19 Furthermore, the September 2, 2004 Scheduling Order, specifically stated in paragraph J: 20 21 22 23 24 25 26 27 28
2

Motions on discovery matters are strongly discourage. Parties are directed to local rule 1.10(j), which prohibits filing discovery motions unless parties have first met to resolve any discovery difficulties. If the parties cannot reach a resolution, they're directed to jointly arrange with the Court a conference call to resolve the matter orally in court in lieu of filing a formal motion. One the call is made, the Court will provide for the direction concerning preparation for the Plaintiff's counsel did not involve defense counsel in any effort to schedule a conference call with the Court prior to or on August 26, 2005. As defense counsel has no knowledge of what information plaintiff's counsel provided to the Court on or about August 26, 2005, defense counsel cannot comment other than to state that defense counsel did not authorize plaintiff's

Case 2:03-cv-02300-ROS

Document 42

Filed 10/12/2005

Page 2 of 4

1 counsel to initiate the ex parte call with defendant's approval nor did defense counsel otherwise 2 waive the requirements of the Scheduling Order. 3 Therefore, it is simply unclear what the basis is for plaintiff counsel's arguments on pages 4 3 and 4 of his Motion. Likewise, a motion to strike has a very limited and clearly defined role in federal practice. 5 6 Rule 12 (f), F.R.Civ.P., applies only to pleadings. Sagan v. Apple Computer, 874 F. Supp. 1072, 1080 (C.D. Cal., 1994) The memorandum requested by the Court was not a pleading. 7 The essential function of a Rule 12(f) motion is to "avoid the expenditure of time and 8 money that must arise from litigating spurious issues by dispensing with those issues prior to 9 trial." Bureerong v. Uvawas, 922 F. Supp. 1450, 1478 (C.D. Cal., 1996); Fantasy, Inc. v. 10 Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993); see also, Sagan, 874 F.Supp. at 1072 (citing same 11 language). Rule 12(f) motions are generally "disfavored" because they are, as here, often used 12 as delaying tactics, and because of the limited importance of pleadings in federal practice. 13 Colaprico v. Sun Microsystems, Inc., 758 F.Supp. 1335, 1339 (N.D.Cal.1991). 14 Finally, a motion to strike is a severe measure and should not be granted unless it is clear 15 that the matter to be stricken could have no possible bearing on the subject matter of the 16 litigation. Wilkerson v. Butler, 229 F.R.D. 166, 170 (E.D. Cal., 2005) Cardinale v. La Petite 17 Academy, Inc., 207 F. Supp. 2d 1158, 1161-62 (D. Nev., 2002). 18 The plaintiff was electronically served with the defendant's Memorandum and Exhibits 19 on October 3, 2005. Pursuant to the Court's September 2, 2005 Order, the parties had until 20 October 7, 2005, to file a rebuttal statement. Instead she chose to file a Motion to Strike. As a 21 result, she has waived her right to rebuttal under this Court's Order. 22 Therefore, as the plaintiff has failed to meet the requirements of Rule 12(f), F.R.Civ.P., 23 her Motion to Strike is without merit and must be denied. 24 25 26 27 28
3

Case 2:03-cv-02300-ROS

Document 42

Filed 10/12/2005

Page 3 of 4

1 2 3 4 5 6 7 8 9 10

Respectfully submitted this 12th day of October 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney CERTIFICATE OF SERVICE I hereby certify that on October 12, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

Rosval A. Patterson 11 Attorney at Law Patterson & Associates, P.C. 12 777 East Thomas Road # 210 Phoenix, Arizona 85014 13 s/ John R. Mayfield 14 Office of the U.S. Attorney 15 I hereby certify that on October 12, 2005, I served the attached document by mail, on the 16 following, who are not registered participants of the CM/ECF System: Dana Heck, Attorney 17 Office of Regional Counsel Department of Veterans Affairs 18 650 East Indian School Road, Building 24 Phoenix, Arizona 19 20 s/ John R. Mayfield Office of the U.S. Attorney 21 22 23 24 25 26 27 28
4

Case 2:03-cv-02300-ROS

Document 42

Filed 10/12/2005

Page 4 of 4