Free Response to Motion - District Court of Arizona - Arizona

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Russell A. Kolsrud, #004578 Brad M. Thies, #021354 N ORLING, K OLSRUD, S IFFERMAN & D AVIS, P.L.C. 16427 N. Scottsdale Road, Suite 210 Scottsdale, Arizona 85254 (480) 505-0015 Attorneys for Defendant ValueOptions, Inc.

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Case No. CIV 03-1344-PHX-EHC (MS) SHANNON MICHAEL CLARK, Plaintiff, v. VALUEOPTIONS, INC., RESPONSE TO PLAINTIFF'S MOTION TO STRIKE DEFENDANT VALUEOPTIONS INC.'S MOTION FOR SUMMARY JUDGMENT AND STATEMENT OF FACTS AND PLAINTIFF'S MOTION TO STRIKE DEFENDANT VALUEOPTIONS' RESPONSE AND OPPOSITION TO PLAINTIFF'S MOTION TO REOPEN DISCOVERY

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Defendant ValueOptions, Inc. ("ValueOptions"), through its counsel, hereby files its response to plaintiff's motions to strike defendant ValueOptions' motion for summary judgment and statement of facts and ValueOptions' response and opposition to plaintiff's motion to reopen discovery. Plaintiff's motions should be denied as they fail to advance a proper basis required to support a motion to strike. Plaintiff's motions to strike are based upon the premise that a clerical error by ValueOptions' counsel in inadvertently mailing copies of the second motion for summary judgment and accompanying statement of facts and its response in opposition of plaintiff's motion to reopen discovery to plaintiff's previous address. (See Exhibit "1", September 26, 2005, letter to Shannon Clark enclosing copies of said pleadings). Additionally, plaintiff urges that this clerical error constitutes improper ex parte communication. Despite

Case 2:03-cv-01344-EHC-HCE

Document 146

Filed 09/30/2005

Page 1 of 3

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plaintiff's contentions, the inadvertent mistake of mailing pleadings to plaintiff's previous address does not provide sufficient support to strike these pleadings nor does it constitute ex parte communications with the court. Generally, motions to strike are disfavored. Bureerong v. Uvawas, 922 F.Supp 1450, 1478 (C.D. Ca. 1996). In this case, there is no justification for granting plaintiff's motions to strike. Although not done intentionally, it does appear that plaintiff will receive copies of the pleadings until he receives the September 26, 2005 correspondence enclosing them. As such, ValueOptions poses no objection to providing plaintiff with additional time to respond to the pleadings. Although plaintiff's motion attempts to manufacture some sort of prejudice, he admits to receiving the "notice of filer deficiency" sent to all parties because the incorrect document type was selected during electronic filing. (Dkt. 140). Upon receiving this notice, plaintiff was well aware of the summary judgment and statement of facts. Even being so aware, plaintiff did not notify ValueOptions' counsel that he did not receive a copy of the pleadings due to the inadvertent error. Nor did he request a copy of these documents. Instead, plaintiff waited until September 21, 2005 to file a motion to strike. In addition to plaintiff's motions to strike lacking sufficient justification, granting plaintiff additional time to respond to both pleadings will eliminate any prejudice to plaintiff and allow for adjudication of the pleadings on their merits. Additionally, the inadvertent error of mailing copies of the referenced pleadings to plaintiff's previous address does not constitute ex parte communication. Although plaintiff allegedly did not receive copies of the referenced pleadings, they were filed with the clerk of the court making them public record. Since the pleadings were public record and there were no improper communications with the judiciary involved in his matter, the facts do not equate to a violation of prohibited ex parte communication. Based on the foregoing, ValueOptions requests that this court deny plaintiff's motions to strike and allow plaintiff additional time to respond to the referenced motions due to the inadvertent error of counsel.

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RESPECTFULLY SUBMITTED this 30th day of September, 2005. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.

By: /s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc. Original electronically filed with the Court this day of September 30, 2005, with a copy mailed to: Shannon M. Clark #113372 ASPC-Tucson-Santa Rita P.O. Box 24406 Tucson, Arizona 85734-4406 Plaintiff pro per /s/ Brad M. Thies

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