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Mark Willnerd, An Individual v. Sybase

February 10, 2011

MARK WILLNERD, AN INDIVIDUAL, PLAINTIFF,
v.
SYBASE, INC., A DELAWARE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: B. Lynn WINMILLChief U.S. District Court Judge

MEMORANDUM DECISION AND ORDER

Before the Court is Defendant's Motion (Dkt. 101) to Strike Plaintiff's Second Amended Complaint (Dkt. 98). The Court has reviewed the parties' briefing, including Defendant's Sur-Reply and Plaintiff's Sur-Sur-Reply, and will consider the motion without oral argument. For the reasons stated below, the Court will deny Defendant's Motion to Strike, as well as Defendant's requests to depose Plaintiff for five more hours, and for sanctions.

BACKGROUND

Plaintiff Mark Willnerd filed this suit against his former employer, Defendant Sybase, claiming -- among other allegations -- wrongful discharge in retaliation for his participation in an investigation concerning Willnerd. Willnerd filed a timely first amended complaint that added a defamation claim, and later sought leave to file a Second Amended Complaint (SAC). The Court granted leave to amend the defamation claim, in light of recent and pending discovery, but denied leave to add claims concerning breach of an implied in fact contract. Order, Dkt. 71. Sybase now moves to strike the SAC as beyond the scope of the Court's order, and requests sanctions for having to bring this motion. Sybase also asks to depose Willnerd for five additional hours.

ANALYSIS

1. Non-Compliance With Civil Rules And Court Orders

As an initial matter, the Court notes that counsel for both parties have departed from Rules of Civil Procedure and Court Orders, in filing their briefing in this matter. Sybase filed a Supplemental or Sur-Reply (Dkt.105) following an informal notice to the Court that its additional brief was necessary given information just discovered at deposition, and due to the imminence of a decision on its motion.

Before exceeding the scope of pleadings permitted in the Court Rules, parties must generally seek leave of the court. See L. Civ. R. 7.1(2). Here, the Court was not presented with, and thus did not grant, a request for leave to file the sur-reply. It is within the courts' discretion whether to consider supplemental briefing, beyond those allowed in the Court Rules. See Oregon Mut. Ins. Co. v. Seattle Collision Ctr. Inc., 2010 WL 4629066 (9th Cir. 2010). Here, the Court chose not to strike Sybase's pleading, but permitted Willnerd to file a sur-sur-reply, limited to five pages. Order, Dkt. 106; cf Dichter-Mad Family Partners, LLP v. U.S., 707 F.Supp.2d 1016, 1041 fn. 15 (C.D. Cal. 2010). Willnerd filed his sur-sur-reply by the Court's deadline, but exceeded the page limit by ten pages. Pl's Sur-Sur-Reply, Dkt. 109.

On review of the pleadings, and as further discussed below, the Court finds that the supplemental replies add little if anything to the parties' positions. The replies do reveal much, however, about the discord of counsel in this matter. To borrow from a classic American film, "[w]hat we've got here is a failure to communicate." Cool Hand Luke (Warner Bros. 1967).

Had counsel engaged in reasoned discussion regarding Sybase's concerns raised during the January 2011 deposition of Mark Willnerd, neither reply would have been necessary. Counsel for Sybase contends that Willnerd raised six new allegations of defamatory statements that should be stricken, and that further support Sybase's motion to strike the SAC. Counsel for Willnerd responds that, both on and off the record at deposition, she assured Sybase's counsel that the bases for Willnerd's defamation claim are the two statements alleged in the SAC and supplemented discovery. Willnerd SurSur-Reply, Dkt. 109 at 3. The rest of the supplemental replies largely repeats the parties' arguments in prior pleadings. Although little was gained from the parties' efforts, much has been lost by way of time and expense. To borrow from an even greater classic film: "How did things ever get so far? I don't know. It was so -- unfortunate -- so unnecessary." The Godfather (Paramount 1972).

The breakdown in communication between counsel has reached a point beyond which the Court is able to effectively manage the parties' discovery disputes through its preferred process of informal conferences. The Court will thus require the parties to address any future disputes in this matter through written motions, strictly limited to five pages. Responses must be filed within one week of the motion, and will also be limited to five pages. A reply, if any, will be due two days after the response, and will be limited to two pages. Briefing that exceeds these page limits or deadlines will be disregarded unless prior approval has been obtained -- by written motion -- and for good cause shown. Where there is an urgent concern needing immediate attention, the parties may first contact the assigned law clerk to discuss how the Court wishes to proceed.

2. Motion To Strike Second Amended Complaint

The purpose of a Rule 12(f) motion is to avoid costs arising from litigation of "spurious issues" by eliminating them prior to trial. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Whether to grant a motion to strike is within the courts' discretion. See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010). Here, Sybase moves to strike Willnerd's SAC (Dkt. 98) on grounds that it exceeds the scope of the Court's Order (Dkt. 71) allowing amendment as to a defamation claim.

Sybase asserts, and Willnerd does not dispute, that the defamatory statements alleged in the Second Amended Complaint (SAC) were provided to Willnerd in discovery as early as March 19, 2010. Sybase Mot., Dkt. 101-1 at 7. However, according to Willnerd, evidence supporting his claim that Karen Chapin made the statements with express malice was gathered sometime after the April 26, 2010 deadline to amend the complaint. Willnerd Resp., Dkt. 103 at 9. Willnerd argues that he ...


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