Mpoyo v. FIS Management Services LLC

• Court: District Court, D. Arizona
• Decided: November 20, 2019
• Docket: 2:17-cv-04307
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Kolela Mpoyo, ) No. CV-17-04307-PHX-SPL ) 9 ) 10 Plaintiffs, ) ORDER vs. ) ) 11 ) FIS Management Services LLC , ) 12 ) 13 Defendant. ) ) 14 )

15 On April 5, 2019, Defendant filed a Motion for Summary Judgment (Doc. 71). The 16 Court issued an Order on April 15, 2019, notifying Plaintiff of the Motion and specifically 17 instructing Plaintiff to respond by May 15, 2019 (Doc. 74). Plaintiff did not file a Response 18 until October 8, 2019 (Doc. 92). Pending before the Court are Defendant’s Motion to 19 Strike and Motion for Summary Disposition (Doc. 95) and Plaintiff’s Motion to Strike 20 Defendant’s Motion for Summary Judgment and Motion for Summary Disposition (Doc. 21 96). 22 A. Plaintiff’s Motion to Strike (Doc. 96) 23 Plaintiff seeks to strike Defendant’s Motion for Summary Judgment for failure to 24 include a certificate of conferral as required by the Case Management Order (Doc. 21 at 25 5). The Order provides that the failure to attach a certificate of conferral may result in the 26 motion being summarily stricken by the Court. The language, however, is permissive and 27 not mandatory, the Motion was not stricken, and Plaintiff was still required to respond 28 (Doc. 74). The Court is further disinclined to strike the Motion now that Plaintiff has 1 objected seven months after the motion was filed and after the dispositive motion deadline 2 has run. Instead, the Court will address the merits of Defendant’s motion.1 3 B. Defendant’s Motion to Strike and for Summary Disposition (Doc. 95) 4 Defendant seeks to strike Plaintiff’s Response to the Motion for Summary Judgment 5 as untimely (Doc. 95). Plaintiff objects to the Motion to Strike, arguing that Defendant’s 6 Motion for Summary Judgment was improperly filed prior to the close of discovery and 7 claiming Plaintiff could not possibly be expected to respond prior to the discovery deadline. 8 The original dispositive motion deadline was set for March 2, 2019 (Doc. 21) and was 9 extended to April 5, 2019 by Court Order (Doc. 65). Defendant filed its Motion for 10 Summary Judgment in compliance with the then current dispositive motion deadline (Doc. 11 71). Although the discovery and dispositive motion deadlines were again extended (Doc. 12 91), Plaintiff never sought an additional extension of the May 15, 2019 response due date 13 (Doc. 74). See Fed R. Civ. P. 6(b); Fed. R. Civ. P. 56(d). To the extent Plaintiff argues 14 that the extension of the dispositive motion deadline somehow superseded the response 15 deadline, that argument is incorrect. See LRCiv 56.1(d) (setting the deadlines for 16 responsive and reply memoranda). The fact that Plaintiff is appearing pro se does not 17 excuse any failure to comply with the Federal Rules of Civil Procedure. See Ghazali v. 18 Moran, 46 F.3d 52, 54 (9th Cir. 1995) (“Although we construe pleadings liberally in their 19 favor, pro se litigants are bound by the rules of procedure.”). Accordingly, the Court will 20 strike Plaintiff’s response (Doc. 92) as untimely. 21 Based on Plaintiff’s untimely motion, Defendant seeks summary disposition on its 22 Motion for Summary Judgment. The Court, however, finds that doing so would not fulfill 23 the requirements of Rule 56 of the Federal Rules of Civil Procedure and would result in an 24 improper sanction for Plaintiff’s failure to file a timely response. The Court will thus 25 26 1 The Court further notes that it disagrees with Plaintiff’s characterization of Defendant’s Motion for Summary Judgment and Motion for Summary Disposition as 27 duplicative. A motion for summary disposition pursuant to LRCiv 7.2 and a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure are two distinct 28 and separate motions. Accordingly, the Court will not strike them as duplicative. 1 | address the merits of the motion. 2 IT IS THEREFORE ORDERED that Plaintiff's Motion to Strike (Doc. 96) is 31 denied. 4 IT IS FURTHER ORDERED that Defendant’s Motion to Strike and Motion for 5 | Summary Disposition (Doc. 95) is granted in part and denied in part. 6 IT IS FURTHER ORDERED that Defendant’s Motion to Strike (Doc. 95) is 7| granted. Plaintiff's Response to the Motion for Summary Judgment (Doc. 92) is stricken. 8 IT IS FURTHER ORDERED that Defendant’s Motion for Summary Disposition (Doc. 95) is denied. 10 Dated this 20th day of November, 2019. 11 12 13 LG 6S 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28