Winters, et al v. Jordan, et al
Filing
305
ORDER signed by Magistrate Judge Kendall J. Newman on 11/9/2011 DENYING 233 Plaintiffs' Motion to Remove defendant & attorney for co-defendants David Silber for conflict of interest and Motion to Strike # 82 - 85 . (Reader, L)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BRENT WINTERS, et al.,
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Plaintiffs,
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No. 2:09-cv-00522 JAM KJN PS
v.
DELORES JORDAN, et al.,
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Defendants.
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ORDER
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Presently before the court is plaintiffs’ “Motion to Remove Defendant & Attorney
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for Co-Defendants David Silber for Conflict of Interest and Motion to Strike Dkts. 82-85” (Dkt.
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No. 233).1 Because oral argument would not materially aid the resolution of the pending motion,
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the undersigned submitted this matter on the briefs and record without a hearing. See Fed. R.
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Civ. P. 78(b); E. Dist. Local Rule 230(g). Having fully considered the parties’ arguments
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contained in their moving and opposition papers, the undersigned denies plaintiffs’ motion.
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I.
Plaintiffs’ Request to “Remove” David Silber as Counsel
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Plaintiffs first seek to have attorney and defendant David Silber “removed” or
disqualified insofar as he is counsel of record for defendants Michael and Virginia Armstrong.
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This case proceeds before the undersigned pursuant to Eastern District of California
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
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David Silber, Michael Armstrong, and Virginia Armstrong are all named defendants in this case.
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As noted above, Silber serves as counsel to Michael and Virginia Armstrong. Silber was also
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previously retained by Virginia Armstrong in connection with seeking a restraining order from
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the Nevada County Superior Court against one or more of the plaintiffs in this case. That
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restraining order, among other things, gave rise to plaintiffs’ claims in this case. Plaintiffs have
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sued in this action nearly every single person they encountered during the course of the
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proceedings in the Nevada County Superior Court—plaintiffs named nearly 60 defendants in this
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case. Now plaintiffs seek to disqualify Silber in this case because his interests are purportedly
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not aligned, or are purportedly in conflict, with Michael and Virginia Armstrong’s respective
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interests.
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Plaintiffs’ motion to “remove” Silber from his representation is denied. Beyond
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being a frivolous motion filed by plaintiffs to harass Silber, Michael Armstrong, and Virginia
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Armstrong, plaintiffs lack standing to challenge Silber’s representation of the Armstrongs in this
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case. To the extent that there is any conflict of interests among Silber and the Armstrongs in this
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litigation, that conflict must be raised by the Armstrongs—not opposing parties who are suing the
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Armstrongs. Accordingly, plaintiffs’ motion is denied.
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II.
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Plaintiffs’ Motion to Strike
Plaintiffs also move to strike “Dkts. 82-85” pursuant to Federal Rule of Civil
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Procedure 12(f). The documents associated with docket entries 82 through 85 in this case consist
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of Virginia’s and Michael Armstrong’s respective motions to dismiss plaintiffs’ Third Amended
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Complaint, and related papers. Silber filed those motions on behalf of Virginia and Michael
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Armstrong. The undersigned denies plaintiffs’ motion to strike for three reasons.
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First, plaintiffs’ motion to strike is entirely contingent on their argument that
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David Silber must be “removed” or disqualified from his representation of Michael and Virginia
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Armstrong in this case. Because plaintiffs’ argument in that regard lacks merit, their contingent
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motion to strike is denied.
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Second, Michael and Virginia Armstrong’s moving papers may not be stricken
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pursuant to Federal Rule of Civil Procedure 12(f) because they are not pleadings. Rule 12(f)
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permits the court to “strike from a pleading an insufficient defense or any redundant, immaterial,
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impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f) (emphasis added). In turn, the term
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“pleading” is defined in Federal Rule of Civil Procedure 7 as follows:
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(a) Pleadings. Only these pleadings are allowed:
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(1) a complaint;
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(2) an answer to a complaint;
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(3) an answer to a counterclaim designated as a counterclaim;
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(4) an answer to a crossclaim;
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(5) a third-party complaint;
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(6) an answer to a third-party complaint; and
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(7) if the court orders one, a reply to an answer.
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Here, plaintiffs’ Rule 12(f) motion to strike seeks to strike materials that are not
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pleadings or contained in pleadings. Accordingly, plaintiff’s motions to strike are denied. See
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Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983) (“Under the express
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language of the rule, only pleadings are subject to motions to strike.”).
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Third, the undersigned denies plaintiffs’ motion to strike docket entries 82
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through 85 as moot. The court long ago granted Michael Armstrong’s motion to dismiss and
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dismissed Michael Armstrong from this action with prejudice. (See Findings &
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Recommendations, July 22, 2010, Dkt. No. 146, adopted by Order, Sept. 14, 2010, Dkt.
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No. 179.) The court also resolved Virginia Armstrong’s motion to dismiss prior to the filing of
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the pending motion to strike. (See Findings & Recommendations, July 27, 2010, Dkt. No. 147,
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adopted by Order, Sept. 14, 2010, Dkt. No. 180.)
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III.
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CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that plaintiffs’ “Motion to
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Remove Defendant & Attorney for Co-Defendants David Silber for Conflict of Interest and
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Motion to Strike Dkts. 82-85” (Dkt. No. 233) is denied.
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IT IS SO ORDERED.
DATED: November 9, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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