(PS) Viramontes, et al v. Pfizer Inc., No. 2:2015cv01754 - Document 31 (E.D. Cal. 2016)

Court Description: ORDER signed by District Judge Troy L. Nunley on 2/22/2016 ORDERING that the 23 findings and recommendations are ADOPTED IN FULL. Plaintiffs' 29 additional Reply to Defendant's Response to the Objections to the findings and recommendations is STRICKEN. Defendant's 6 Motion to Dismiss is GRANTED with leave to amend within 30 days. Defendant's request to convert the Motion to Dismiss into a Summary Judgement motion is DENIED. (Zignago, K.)

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(PS) Viramontes, et al v. Pfizer Inc. Doc. 31 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHARON E. VIRAMONTES, et al., 12 13 14 15 No. 2:15-cv-1754 TLN AC (PS) Plaintiffs, v. ORDER PFIZER, INC., Defendant. 16 17 18 Plaintiffs are proceeding pro per in this action. The matter was referred to a United States Magistrate Judge by Eastern District of California Rule (“Local Rule”) 302(c)(21). 19 On December 23, 2015, the magistrate judge filed findings and recommendations herein 20 which were served on all parties and which contained notice to all parties that any objections to 21 the findings and recommendations (“F&Rs”) were to be filed within twenty-one days. (ECF No. 22 23.) Plaintiffs filed timely objections to the findings and recommendations (ECF No. 26), and 23 Defendant filed a response (ECF No. 28). Plaintiffs filed an additional reply to Defendants 24 Response (ECF No. 29), and Defendant filed a Motion to Strike the Plaintiffs’ additional reply as 25 improper under the Federal Rules of Civil Procedure (“Federal Rules”), Eastern District Local 26 Rules (“Local Rules”), and the Court’s F&Rs (ECF No. 30.) 27 28 “Failure to comply with this Court’s orders, local rules, and the Federal Rules of Civil Procedure ‘may be grounds for the imposition by the Court of any and all sanctions . . . within the 1 Dockets.Justia.com 1 inherent power of the Court.’” Dews v. Kern Radiology Med. Grp., Inc., No. 1:12-CV-00242- 2 AWI, 2013 WL 1284110, at *1 (E.D. Cal. Mar. 28, 2013) (quoting Local Rule 110). “Courts 3 have the inherent power to control their docket and in the exercise of that power, they may 4 properly strike documents.” Id. (citing Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 5 404–05 (9th Cir. 2010)). Pro se litigants, like all litigants, must obey the Federal and Local 6 Rules. Kent v. City of Sacramento, No. 2:07-CV-02361 MCE, 2011 WL 6012413, at *3 (E.D. 7 Cal. Dec. 1, 2011). The Court finds that Plaintiffs’ reply to the Defendant’s Response (ECF No. 8 29) is improper under the Federal Rules, the Local Rules, and the Court’s F&Rs. The Federal 9 Rules provide that a party may serve “specific written objections” to F&Rs, and that the opposing 10 party “may respond.” Fed. R. Civ. P. 72(b)(2). Likewise, Local Rule 304(b)-(d) provides only 11 for objections and a corresponding response. Consistent with those rules, the Court’s F&Rs 12 provide that either party may object, and the opposing party may file a response. (ECF No. 23, at 13 18.) No further briefing is authorized. Accordingly, pursuant to Defendant’s Motion to Strike 14 (ECF No. 30), the Court finds Plaintiffs reply (ECF No. 29) improper and it is hereby stricken.1 15 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 16 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 17 Court finds the findings and recommendations to be supported by the record and by proper 18 analysis. 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. The findings and recommendations filed December 23, 2015 (ECF No. 23), are 21 ADOPTED in full; 2. Plaintiffs’ additional Reply to Defendant’s Response to the Objections to the findings 22 23 and recommendations (ECF No. 29) is STRICKEN. 3. Defendant’s Motion to Dismiss (ECF No. 6), is GRANTED, as follows: 24 a. Plaintiffs’ claims for negligence and strict products liability are dismissed with 25 26 27 28 1 Nevertheless, the Court notes that it did review Plaintiffs additional reply (ECF No. 29) and found the arguments therein unpersuasive. Therefore, even if the Court had considered the arguments raised in Plaintiffs additional reply it would have not have changed the Courts decision. 2 1 prejudice as barred by the applicable statute of limitations; and 2 b. Plaintiff Edward Viramontes’s claim for loss of consortium is dismissed 3 without prejudice, as barred by the statute of limitations. Mr. Viramontes is 4 granted 30 days to amend his complaint, if he can truthfully allege that his loss of 5 consortium did not begin until on or after July 18, 2013. 6 3. Defendant’s request to convert the Motion to Dismiss into a Summary Judgement 7 motion is denied. 8 9 Dated: February 22, 2016 10 Troy L. Nunley United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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