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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

On April 5, 2019, Defendant filed a Motion for Summary Judgment (Doc. 71). The 

Court issued an Order on April 15, 2019, notifying Plaintiff of the Motion and specifically 

instructing Plaintiff to respond by May 15, 2019 (Doc. 74). Plaintiff did not file a Response 

until October 8, 2019 (Doc. 92). Pending before the Court are Defendant’s Motion to 

Strike and Motion for Summary Disposition (Doc. 95) and Plaintiff’s Motion to Strike 

Defendant’s Motion for Summary Judgment and Motion for Summary Disposition (Doc. 

96).

A. Plaintiff’s Motion to Strike (Doc. 96)

Plaintiff seeks to strike Defendant’s Motion for Summary Judgment for failure to 

include a certificate of conferral as required by the Case Management Order (Doc. 21 at 

5). The Order provides that the failure to attach a certificate of conferral may result in the 

motion being summarily stricken by the Court. The language, however, is permissive and 

not mandatory, the Motion was not stricken, and Plaintiff was still required to respond 

(Doc. 74). The Court is further disinclined to strike the Motion now that Plaintiff has 

Kolela Mpoyo,

 

Plaintiffs, 

vs. 

FIS Management Services LLC ,

Defendant. 

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No. CV-17-04307-PHX-SPL

ORDER
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objected seven months after the motion was filed and after the dispositive motion deadline 

has run. Instead, the Court will address the merits of Defendant’s motion.1

B. Defendant’s Motion to Strike and for Summary Disposition (Doc. 95)

Defendant seeks to strike Plaintiff’s Response to the Motion for Summary Judgment 

as untimely (Doc. 95). Plaintiff objects to the Motion to Strike, arguing that Defendant’s 

Motion for Summary Judgment was improperly filed prior to the close of discovery and 

claiming Plaintiff could not possibly be expected to respond prior to the discovery deadline. 

The original dispositive motion deadline was set for March 2, 2019 (Doc. 21) and was 

extended to April 5, 2019 by Court Order (Doc. 65). Defendant filed its Motion for 

Summary Judgment in compliance with the then current dispositive motion deadline (Doc. 

71). Although the discovery and dispositive motion deadlines were again extended (Doc.

91), Plaintiff never sought an additional extension of the May 15, 2019 response due date 

(Doc. 74). See Fed R. Civ. P. 6(b); Fed. R. Civ. P. 56(d). To the extent Plaintiff argues 

that the extension of the dispositive motion deadline somehow superseded the response 

deadline, that argument is incorrect. See LRCiv 56.1(d) (setting the deadlines for 

responsive and reply memoranda). The fact that Plaintiff is appearing pro se does not 

excuse any failure to comply with the Federal Rules of Civil Procedure. See Ghazali v. 

Moran, 46 F.3d 52, 54 (9th Cir. 1995) (“Although we construe pleadings liberally in their 

favor, pro se litigants are bound by the rules of procedure.”). Accordingly, the Court will 

strike Plaintiff’s response (Doc. 92) as untimely. 

Based on Plaintiff’s untimely motion, Defendant seeks summary disposition on its 

Motion for Summary Judgment. The Court, however, finds that doing so would not fulfill 

the requirements of Rule 56 of the Federal Rules of Civil Procedure and would result in an

improper sanction for Plaintiff’s failure to file a timely response. The Court will thus 

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 

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 

and separate motions. Accordingly, the Court will not strike them as duplicative.
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address the merits of the motion.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Strike (Doc. 96) is 

denied.

IT IS FURTHER ORDERED that Defendant’s Motion to Strike and Motion for 

Summary Disposition (Doc. 95) is granted in part and denied in part.

IT IS FURTHER ORDERED that Defendant’s Motion to Strike (Doc. 95) is 

granted. Plaintiff’s Response to the Motion for Summary Judgment (Doc. 92) is stricken. 

IT IS FURTHER ORDERED that Defendant’s Motion for Summary Disposition 

(Doc. 95) is denied.

Dated this 20th day of November, 2019.

Honorable Steven P. Logan

United States District Judge