(PC) Hernandez v. Marcelo

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA MARINO ANTONIO HERNANDEZ, Case No. 1:19-cv-01219-NONE-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 13 v. STRIKE DEFENDANTS’ AFFIRMATIVE DEFENSES J. MARCELO, et al., (Doc. 28) 15 Defendants.

14-DAY DEADLINE 17 Before the Court is Plaintiff’s motion to strike Defendants’ affirmative defenses from their answer to Plaintiff’s complaint. (Doc. 28.) For the reasons set forth below, the Court recommends that Plaintiff’s motion be denied.

20 Defendants filed their answer to Plaintiff’s complaint on July 16, 2020. (Doc. 24.) Federal Rule of Civil Procedure 12(f) provides that a party must file a motion to strike a defense from an answer within 21 days of being served with the pleading. Fed. R. Civ. P. 12(f)(2). Taking into account the extra time provided by Rules 6(d) and 6(a)(1)(C), Plaintiff should have submitted his motion to prison officials for mailing by August 10, 2020. See Douglas v. Noelle, 567 F.3d 1103, 1106-07 (9th Cir. 2009) (under the prison mailbox rule, a document submitted by a pro se prisoner is deemed filed “at the time [he] delivered it to … prison authorities for forwarding to the court clerk”) (internal quotation marks and citation omitted). Plaintiff’s motion and proof of motion on August 17, 2020. Plaintiff’s motion is therefore untimely, and the Court recommends denial on this ground.

3 Assuming arguendo that Plaintiff timely submitted the motion, the Court still recommends denial. In general, courts view motions to strike “with disfavor because [they] are often used as delaying tactics, and because of the limited importance of pleadings in federal practice…. Accordingly, courts often require a showing of prejudice by the moving party.” S.E.C.

7 v. Sands, 902 F. Supp. 1149, 1165–66 (C.D. Cal. 1995) (internal quotation marks and citations omitted); see also Hernandez v. Balakian, No. 1:06-cv-01383-OWW-DLB, 2007 WL 1649911, at *1 (E.D. Cal. 2007). Plaintiff moves to strike all but one of Defendants’ affirmative defenses (Doc. 28 at 4-9), but he fails to allege or demonstrate any prejudice arising from the defenses.

11 Based on the foregoing, the Court RECOMMENDS that Plaintiff’s motion to strike Defendants’ affirmative defenses (Doc. 28) be DENIED. These Findings and Recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the specified time may result in waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.

22 Dated: January 5, 2021 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE