(PC) Brooks v. Smith

Opinion

WILLIE LEE BROOKS, II, No. 2:22-CV-0062-DMC-P Plaintiff, v. ORDER Defendant. Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s motion to strike affirmative defenses. See ECF No. 90. Defendant has filed an opposition. See ECF No. 92. Plaintiff has filed a reply. See ECF No. 93. In his motion, Plaintiff seeks an order pursuant to Federal Rule of Civil Procedure 12(f) striking affirmative defenses asserts in Defendant’s answer. See ECF No. 90. A plaintiff’s motion to strike affirmative defenses from an answer must be brought within twenty-one days after being served with the defendant’s answer. See Fed. R. Civ. P. 12(f)(2); see also Est. of Sanchez v. Cnty. of Stanislaus, No. 1:18-cv-00977, 2023 WL 7612399, at *11, n.1 (E.D. Cal. Nov. 14, 2023). Here, Defendant’s answer, with affirmative defenses, was served on Plaintiff on September 2, 2022. See ECF No. 30. The currently pending motion to strike was filed fifteen months later of December 6, 2023. See ECF No. 90. Because Plaintiff’s motion was not filed within 21 days after being served, the Court agrees with Defendant that it is untimely. Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion to strike, ECF No. 90 is DENIED as untimely. Dated: January 23, 2024 Svc UNITED STATES MAGISTRATE JUDGE 1]