Free Motion to Strike - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Timothy J. Bojanowski, Bar #022126 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Tel: (602) 263-7324 Fax: (602) 200-7837 [email protected] Attorneys for Defendants Cora Miles, Joe Gluch, Stella Ponce, Seferino Talamantes, and Timothy Cason UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Carlos Arthur Powell,

11 Plaintiff, 12 13 14 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 v. F. Garcia (Asst. Warden), C. Miles (Unit Manager/Bravo) E. Scalet (Ins. Inv.) Todd Mohn (DHO Hearing Officer)

NO. CIV 03-1819 PHX-JAT (LOA) MOTION TO STRIKE PLAINTIFF'S REBUTTAL TO DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

Now come Defendants, by and through counsel, and hereby m ove to strike Plaintiff's Rebuttal to Defendants' Reply in Support of Their Motion for Sum mary Judgment. Defendants submit the attached Memorandum of Points and Authorities in support, and move to strike the pleading as there is no provision in the Civil Rules which allows a rebuttal. /// /// /// /// ///

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Document 181

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RESPECTFULLY SUBMITTED this 10 th day of April 2006. JONES, SKELTON & HOCHULI, P.L.C.

By s/Timothy J. Bojanowski Daniel P. Struck Timothy J. Bojanowski 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Cora Miles, Joe Gluch, Stella Ponce, S e f e r in o T alamantes, and Timothy Cason MEMORANDUM OF POINTS AND AUTHORITIES On March 31, 2006, Plaintiff filed a Rebuttal to Defendants' Reply Memorandum in Support of Their sum mary judgment motion. (Dkt. # 180). Plaintiff is attempting to add additional facts and arguments to his opposition to the summary judgment. Since there is no Civil Rule for such a pleading it is imm aterial and should be stricken. Fed.R.Civ.Proc. 12(f) provides: Upon motion made by a party before responding to a pleading, or if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Insufficient defenses, redundant material, impertinent, or scandalous

21 matters may be stricken from pleadings at the Court's discretion. Fantasy, Inc. 22 v. Fogerty, 984 F.2d 1524 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517, 23 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). Here, Plaintiff has filed yet another 24 rebuttal memorandum apparently in an effort "to get the last word." LRCiv.R. 25 56.1(D) provides that an opposing party may file a memorandum in opposition 26 2 Case 2:03-cv-01819-JAT Document 181 Filed 04/10/2006 Page 2 of 5

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to a motion for summ ary judgm ent with the moving party filing a reply thereafter. There is no provision for a "rebuttal" to the reply. memorandum is superfluous and should be stricken. Assuming the Court considers the rebuttal memorandum the material attached to the Memorandum does not comply with Fed.R.Civ.P. 56(e), and should be disregarded or stricken. Fed.R.Civ.Proc. 56(e) provides: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. The Rule requires affidavits in support be sworn upon personal knowledge, state specific facts admissible in evidence at the time of trial, and offered by a competent affiant. Affidavits which fail to meet these requirements will not be considered by the Court. Norita v. Northern Mariana Islands, 331 F.3d 690 (9 th Cir. 2003). Further, certain documents attached to Plaintiff's As such, the rebuttal

Memorandum are not authenticated nor is there a supporting affidavit making them admissible. In re Citric Acid Litigation, 191 F.3d 1090 (9 th Cir. 1999). Plaintiff's Exhibits C, D, and E are not authenticated and are hearsay. As a result they are not admissible and cannot be relied on by the Court. 3

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The "additional affidavits" attached to the Motion also do not comport with the requirements of Fed.R.Civ.Proc. 56(e). The affidavit of Davie Tome is made upon "knowledge and belief" and is therefore not sufficient. See Automatic Radio Mfg. Co. v. Hazehine Research, Inc., 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312 (1950). The affidavit of Obi Okoronko is not made upon personal knowledge and is therefore deficient. Norita, supra. Finally, the affidavit of Gustavo Valencia Sotelo, is in part, based upon "belief." Because the affidavits do not com port with the requirements of Fed.R.Civ.Proc. 56(e) they should not be considered by the Court. CONCLUSION W HEREFORE, Defendants respectfully request this Court strike Plaintiff's "Rebuttal Memorandum," or alternatively, disregard the material attached thereto. RESPECTFULLY SUBMITTED this 10 th day of April 2006. JONES, SKELTON & HOCHULI, P.L.C.

By s/Timothy J. Bojanowski Daniel P. Struck Timothy J. Bojanowski 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Cora Miles, Joe Glu ch, Stella Ponce, Seferino Talamantes, and Timothy Cason ORIGINAL of the foregoing electronically filed this 10 th day of April 2006, with: Richard W eare, Clerk U NITED S TATES D ISTRICT C OURT

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COPY of the foregoing mailed this 10 th day April 2006, to: The Honorable James A. Teilborg U NITED S TATES D ISTRICT C OURT Sandra Day O'Connor U.S. Courthouse, Suite 523 401 W est Washington, SPC 51 Phoenix, Arizona 85003-2154 Carlos Powell, #10090-023 D/U 325 FCI-1 V ICTORVILLE P. O. Box 5300 Adelanto, California 92301-5300 Plaintiff Pro Se COPY of the foregoing faxed this 10th day April 2006, to: Office of the Pro Se Staff Attorney 602-322-7289

s/Dianne Clark 13 14 15 16 17 18 19 20 21 22 23 24 25 26
1612349_1

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Case 2:03-cv-01819-JAT