| People Against a Casino Town |
| The following document was filed on
October 14, 2004.
IN THE UNITED STATES
DISTRICT COURT
FOR THE DISTRICT OF OREGON PLAINTIFFS' REPLY ON MOTION TO STRIKE AND ALTERNATIVELY TO RESPOND TO SUR REPLY Case
No. CV-06175-AA
Plaintiffs reply to State Defendants’ Response to the motion to strike as follows: 1. Defendants’ Interpretation of Federal Rule 12(f) is incorrect. Fed. R. Civ. P. 12(f) provides this court the jurisdiction to strike “any” pleading. This language should be read more broadly than what might be suggested in Fed. R. Civ. P. 7. In any event, this Court has the jurisdiction to strike the impugned sections of State Defendants’ Sur Reply. Local Rule 1.4 provides that “[i]n the interest of justice, a judge may suspend or modify the application of these rules in an individual case, or group of cases.” This court has the jurisdiction to apply Fed. R. Civ. P. 12(f) even if it may be technically inapplicable to strike “any redundant, immaterial, impertinent, or scandalous matter” stated in a pleading, motion or other paper. 2. Defendants’ Response concedes that Sur Reply sections II and III are redundant and this Court should strike these sections. State Defendants admit that sections II and III of the Sur Reply “repeat some of the arguments made in their response to Plaintiffs’ motion to remand.” St. Def. Response to Pl. Mot. Strike at 3. In short, they concede that the material is repetitious. Plaintiffs’ view is that despite the repetition, the material is still prejudicial because it provides the Defendants the opportunity to reaffirm their arguments even though the federal rules provide no such right. As State Defendants admit that the material they included in sections II and III are repetitive, and Plaintiffs believe it is unfair and prejudicial, this court should excise these portions from the brief or allow Plaintiffs to respond. Plaintiffs observe that despite the voluminous and numerous briefs filed by Defendants, in no place and at no time have they recited a proper basis for federal jurisdiction over the claims in this matter. While the State Defendants are content to turn circles in the procedural cul-de-sac that they have deliberately created by their improvident removal of this state case to federal court; and, while the state Defendants are content to attempt to have this federal court decide motions and read duplicative sur-replies, the Plaintiffs (citizens of Oregon) all the while are patiently waiting for this state declaratory judgment action (that is directed solely and exclusively at determination of the state powers of the state governor) to be remanded to state court where it properly belongs. Mere inspection of the pleadings and inspection of the claims set out by Plaintiffs reveals, clear beyond cavil, that this is a state matter for decision in state court on questions of state constitutional power. The Plaintiffs cannot be forced to prosecute federal claims they have not filed before a court that accordingly lacks subject matter jurisdiction. In light of Defendants' continued maneuverings as presented to this federal court and its docket, this Court should strike the impugned portions of Defendants’ sur replies or, alternatively, permit Plaintiffs to respond thereto. DATED this 14th day of October, 2004. Respectfully submitted, Hutchinson, Cox, Coons, DuPriest, Orr & Sherlock, P.C. By: William H. Sherlock, OSB #90381 E. Bradley Litchfield, OSB #99311 Of Attorneys for Plaintiffs |
| Link to: PACT Lawsuit |