UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 6, 2012
UNITED STATES OF AMERICA,
VINCENT STEVEN BOOTH, ET AL.,
ORDER STRIKING MOTION FILED DECEMBER 5, 2012, AND ORDER
VACATING HEARING DATE OF DECEMBER 19, 2012
(Doc. No. 108)
On December 5, 2012, Defendants Acacia Corporate Management, LLC, Mariposa Holding Inc., Alpha Enterprises, LLC, and Michael Scott Ioane filed a pleading entitled "Amended Notice of Motion to Dismiss Third Amended Complaint & Memorandum of Law & Argument in Support of Motion to Dismiss 3rd Amended Complaint." (Doc. 108.) For the reasons given below, this Court will strike the pleading.
First, the docket entry associated with this filing is erroneous. The docket entry, versus the actual pleading, reads: "MOTION to AMEND the 97 Amended Complaint, by Acacia Corporate Management, LLC . . .." The motion does not seek to amend any pleading; rather, the motion seeks to dismiss Plaintiff's complaint. The motion should have been filed as a motion to dismiss.
Second, while the title of the pleading references the "third" amended complaint, the body of the document refers to the "second" amended complaint. The operative complaint in this action is in fact the Third Amended Complaint filed November 7, 2012. (Doc. 97.)
Finally, and more significant than the typographical errors, is the date Defendants purportedly set this motion for hearing before the undersigned. The notice states "counsel will move the court for a Motion to dismissing [sic] the second [sic: third] amended complaint, on December 19, 2012 at 1:30 PM or soon thereafter . . .." (Doc. 108 at 1.)
Defendants have failed to comply with this Court's Local Rules. Local Rule 230 concerns civil motion calendar and procedure. In pertinent part, that Local Rule provides:
(b) Notice, Motion, Brief and Evidence. Except as otherwise provided in these Rules or as ordered or allowed by the Court, all motions shall be noticed on the motion calendar of the assigned Judge or Magistrate Judge. The moving party shall file a notice of motion, motion, accompanying briefs, affidavits, if appropriate, and copies of all documentary evidence that the moving party intends to submit in support of the motion. The matter shall be set for hearing on the motion calendar of the Judge or Magistrate Judge to whom the action has been assigned or before whom the motion is to be heard not less than twenty-eight (28) days after service and filing of the motion.
Local Rule 230(b) (emphasis added).
Defendants filed the motion at issue on December 5, 2012; therefore, any hearing on the motion could occur no earlier than January 2, 2013. See Local Rule 230. However, the undersigned hears civil law and motion matters on Mondays at 1:30 p.m. only. Thus, the earliest Defendants' motion could have been heard is January 7, 2013.
Accordingly, IT IS HEREBY ORDERED that:
1. The December 19, 2012, hearing date is VACTED; and
2. Defendants' motion filed December 5, 2012 (Doc. 108), is HEREBY STRICKEN without prejudice.*fn1
IT IS SO ORDERED.
UNITED STATES DISTRICT JUDGE