Free Motion to Strike - District Court of Arizona - Arizona

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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 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Carlos Arthur Powell, CIV 03-1819-PHX-JAT(LOA) Plaintiff vs. F. Garcia, (Assist. Warden); C. Miles (Unit Manager/Bravo); E. Scalet, (INS INV.), et al Defendants Defendant Earl R. Scalet (Scalet), by and through his undersigned counsel, respectfully moves the Court, pursuant to Rule 12(f), F.R.Civ.P., to strike plaintiff's "Traverse to Defendant's Reply to Response to Motion to Dismiss" which is dated July 28, 2006 and filed on August 7, 2006 (Docket Entry # 190).1 This Motion to Strike is supported by the attached Memorandum of Points and authorities and other matters of record. Respectfully submitted this 9TH day of August 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney The Ninth Circuit has held that failure to object or failure to move to strike defective pleadings waives such defects; permits the trial court to consider such matters and precludes review of such matters on appeal. Scharf v. United States Attorney General, 597 F.2d 1240, 1243 (9th Cir.1979).
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MOTION TO STRIKE

Case 2:03-cv-01819-JAT

Document 191

Filed 08/09/2006

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MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff's Attempts to file a further response should be denied. The briefing on the defendants Motion for Summary Judgment was completed upon the filing of the defendants Reply on July 19, 2006. No further pleadings are permitted under Rule 7, F.R.Civ.P. or, more particularly, under Local Rule 7.2. The plaintiff has not set forth any permissible justification for filing a further response to the defendant's motion. Powell raises no new issues or arguments that could not have been included in his response which was filed on June 30, 2006. Although, pro se plaintiff's pleadings are entitled to a liberal interpretation, in all other respects, they are held to the requirements of the Rules of Civil Procedure and Local Rules. McNeil v. United States, 113 S.Ct. 1980, 1984 (1993); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)(Pro se status does not exempt a party from compliance with procedural and substantive rules.);. Although the Supreme Court has broadened the definition of "excusable neglect," see Pioneer Inv. Servs. v. Brunswick Assocs. Ltd Partnership, 507 U.S. 380 (1993), a pro se plaintiff's unfamiliarity with the legal system or ignorance of the law does not fall within the definition of "excusable neglect." United States v. Ware, 172 F.R.D. 458, 459 (D. Kan. 1997); Edwards v. INS, 59 F.3d 5, 8 (2nd Cir. 1995); Swimmer v. INS, 811 F.2d 1343, 1345 (9th Cir. 1987). Therefore, the plaintiff's "traverse" exceeds the permissible scope of the rules governing motion practice. Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1985)(Merely because pro se litigant did not appreciate the requirements of motion practice does not permit more favorable treatment by the court.) Finally, he has failed to set forth a valid reason or reasons for this Court to grant an exception to the rules governing motion practice. Therefore, Powell's "traverse" must be stricken from the record. In the alternative, the defendant is prepared to file a further Reply should the Court determine a need for further briefing in this matter.

Case 2:03-cv-01819-JAT

Document 191

Filed 08/09/2006

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Respectfully submitted this 9th day of August 2006. 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 August 9, 2006, 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: Timothy James Bojanoski Daniel Patrick Struck Jones, Skelton & Hochuli, PLC 2901 N. Central Ave, Suite 800Phoenix, Arizona 85012 Attorneys for Defendants Carson, Gluch, Talamantes, Miles, Ponce s/John R. Mayfield Office of the U.S. Attorney I hereby certify that on August 9, 2006, I served the attached document by mail, on the following, who are not registered participants of the CM/ECF System: Charles (Carlos) Arthur Powell # 10090-023 D/U Federal Correctional Institution Victorville Medium # 1 P.O. Box # 5300 Adelanto, California 92301-5300 LEGAL MAIL s/ John R. Mayfield Office of the U.S. Attorney

Case 2:03-cv-01819-JAT

Document 191

Filed 08/09/2006

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