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Emery I. Franklin v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 27, 2012

EMERY I. FRANKLIN,
PLAINTIFF,
v.
UNITED STATES,
DEFENDANT.

The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER SUA SPONTE STRIKING LETTERS TO THE JUDGE (ECF No. 40, 42) ORDER DENYING AS MOOT DEFENDANT'S MOTION TO STRIKE LETTERS TO THE JUDGE (ECF No. 43)

I. PROCEDURAL HISTORY

On January 20, 2010, Plaintiff Emery Franklin, a federal prisoner proceeding pro se and in forma pauperis, filed this civil action pursuant to the Federal Tort Claims Act ("FTCA"). (Compl., ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (Consent, EFC Nos. 5, 34.) Defendant declined Magistrate Judge jurisdiction. (Decline, ECF No. 29.)

Defendants have answered the Second Amended Complaint. (Answer, ECF No. 22.) On May 1, 2012, the Court issued its Discovery and Scheduling Order (Disc. & Sch. Order, ECF No. 24) providing a November 1, 2012 deadline to amend pleadings, a discovery cut-off of January 1, 2013, and a dispositive motion deadline of March 11, 2013. On November 2, 2012 and November 5, 2012, Plaintiff filed Letters to the Judge ("Letters") appearing to request discovery relief to include appointment of counsel. (Req. for Disc. Relief, ECF Nos. 42 and 40 respectively.)

On November 16, 2012, Defendant filed a motion to strike the Letters on grounds of improper ex parte communication. (Mot. Strike, ECF No. 43.)

II. LEGAL STANDARDS

Rule 12(f) provides that the court may strike from a pleading "an insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Rule 12(f) is limited to striking from a pleading only those specific matters which are provided for in the rule. Whittlestone, Inc. v. Handi--Craft Co., 618 F.3d 970, 974--75 (9th Cir. 2010).

The decision to grant or deny a motion to strike is vested in the trial judge's sound discretion. Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 664--65 (7th Cir. 1992), citing Alvarado--Morales v. Digital Equip. Corp., 843 F.2d 613, 618 (1st Cir. 1988).

"The Federal Rules of Civil Procedure do not provide for a motion to strike documents or portions of documents other than pleadings. Instead, trial courts make use of their inherent power to control their dockets, Anthony v. BTR Auto. Sealing Sys., 339 F.3d 506, 516 (6th Cir. 2003), when determining whether to strike documents or portions of documents." Zep Inc. v. Midwest Motor Supply Co., 726 F.Supp.2d 818, 822 (S.D. Ohio 2010). "Any documents filed in a civil rights action in which the defendants are not represented by the California State Attorney General must include a certificate of service stating that a copy of the document was served on the opposing party. Fed. R. Civ. P. 5; Local Rule 135 (modified). A document submitted without the required proof of service will be stricken." (First Informational Order, ECF No. 3 at ¶ 4.)

III. ANALYSIS

The Letters shall be stricken by the Court sua sponte.

Plaintiff was required to include with each Letter request for discovery relief a certificate of service stating that a copy of the document was served on the Defendant. Plaintiff failed to do so.

Plaintiff is advised that any request for discovery relief must comply with the Discovery and Scheduling Order and the rules and requirements cited therein. (Disc. & Sch. Order, ECF No. 24 at ¶ 5.) Plaintiff's Letters do not so comply. They fail to identify any pending discovery request or motion or deadline as to which relief is sought. Plaintiff does not identify the specific relief desired. He provides no legal or factual basis for such relief. He provides no basis for reconsidering the Court's November 1, 2012 Order Denying Motion for Appointment of Counsel (Order Denying Mot., ECF No. 39), or any new grounds for appointing counsel. Fed. R. Civ. P. 60(b)(6); Local Rule 230(j).

Defendant's motion to strike the Letters (ECF No. 43) shall be denied as moot. The Court has sua sponte stricken the Letters for the reasons above.

IV. ORDER

Accordingly, it is HEREBY ORDERED THAT:

1. The Court sua sponte strikes the Letters requesting discovery relief (ECF No. 40, 42) without prejudice to Plaintiff filing any desired discovery motion in a manner compliant with the Discovery and Scheduling Order and the rules and requirements cited therein, and

2. Defendants motion to strike the Letters (ECF No. 43) is DENIED as moot.

IT IS SO ORDERED.

20121127

© 1992-2012 VersusLaw Inc.



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