HUKMAN v. US AIRWAYS/AMERICAN AIRLINES et al

RESPONSE in Opposition re MOTION to Strike 114 Response in Opposition to Motion, 115 Response to Motion

E.D. Pa.December 4, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA SHEIDA HUKMAN, Plaintiff, v. US AIRWAYS, INC. / AMERICAN AIRLINES, Defendant. : : : : : : : : : : Civil Action No. 2:17-cv-00741-JS Electronically Filed DEFENDANT AMERICAN AIRLINES, INC.’S RESPONSE IN OPPOSITION TO “PLAINTIFF’S REPLY MOTION TO STRIKE DEFENDANT’S ANSWER” Defendant American Airlines, Inc. (“American”) submits its response in opposition to “Plaintiff’s Reply Motion to Strike Defendant’s Answer” (ECF No. 116; the “Reply Motion”) and requests that the Reply Motion be denied. First, the Reply Motion is an impermissible reply in support of “Plaintiff Motion to Relief from Judgement [sic] Pursuant to Rule 60(b)” (ECF No. 113). Local Rule 7.1(c) allows for a response to a motion, after which “[t]he Court may require or permit briefs or submissions if the Court deems them necessary.” Thus, a reply is not permitted except by leave of Court.1 The Reply Motion is captioned as a reply and rehashes the same arguments Plaintiff raised in her motion to vacate this Court’s prior order (ECF No. 113). Plaintiff continues to argue that she has discovered “new evidence” to justify vacating the Court’s order dismissing Plaintiff’s claims 1 Judge Juan R. Sanchez’s Policies and Procedures permit the filing of reply briefs without leave of Court only in support of a motion for summary judgment or other dispositive motion. Policies and Procedures § E(8). A dispositive motion is one that, if granted, “would result either in the determination of a particular claim on the merits or elimination of such a claim from the case.” Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1215 (D.C.Cir.1997). The “Plaintiff Motion to Relief from Judgement [sic] Pursuant to Rule 60(b)” is not a dispositive motion and no reply is permitted without leave of Court. Case 2:17-cv-00741-JS Document 117 Filed 12/04/18 Page 1 of 5 2 against Republic Airline, Inc. Because the Reply Motion makes the same arguments that Plaintiff made in her prior motion (ECF No. 113), the Reply Motion is simply an impermissible reply and should not be considered by the Court. Even if the Reply Motion is a stand-alone motion to strike (which it is not), it is still not permitted under the Rules of Civil Procedure. Plaintiff offers no legal authority as a basis to strike Defendant’s Response to “Plaintiff Motion to Relief from Judgement [sic] Pursuant to Rule 60(b)” (ECF No. 114; “Defendant’s Response”). Plaintiff argues that Defendant’s Response should be struck because the insufficiency of the defense is “clearly apparent.” However, the cases Plaintiff cites are inapplicable. Two of the cases Plaintiff relies on refer to a motion to strike certain affirmative defenses under Rule 12(f). See Cipollone v. Liggett Grp., Inc., 789 F.2d 181, 183 (3d Cir. 1986); E.E.O.C. v. Bay Ridge Toyota, Inc., 327 F. Supp. 2d 167, 170 (E.D.N.Y. 2004).2 Rule 12(f) allows for a motion to strike “from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” However, Rule 12(f) is inapplicable because Defendant’s Response is not a pleading. Fed. R. Civ. P. 7. The cases Plaintiff cites do not discuss striking motions or responses. Defendant was allowed to file a response to “Plaintiff Motion to Relief from Judgement [sic] Pursuant to Rule 60(b)” under Local Rule 7.1(c) and there is nothing in the Rules of Civil Procedure or the Local Rules that permits the filing of a motion to strike such a response. The Court should deny Plaintiff’s Motion because Plaintiff offers no explanation or legal basis that would justify striking Defendant’s Response. Plaintiff also argues that Defendant’s Response was filed late.3 Local Rule 7.1(c) allows a 2 Plaintiff also cites to S.E.C. v. Elecs. Warehouse, Inc., 689 F. Supp. 53, 72 (D. Conn. 1988), aff’d sub nom. S.E.C. v. Calvo, 891 F.2d 457 (2d Cir. 1989). However, that case does not address motions to strike and Plaintiff’s reliance on it is misplaced. 3 It is unclear whether this argument is directed at American or the response filed by Dr. Karen Cruey (ECF No. 115). American addresses that argument here out of an abundance of caution. Case 2:17-cv-00741-JS Document 117 Filed 12/04/18 Page 2 of 5 3 party opposing a motion fourteen (14) days to file a response. Plaintiff filed the “Plaintiff Motion to Relief from Judgement [sic] Pursuant to Rule 60(b)” on October 23, 2018. Defendant filed Defendant’s Response on November 6, 2018 - exactly fourteen (14) days after Plaintiff filed her motion. Defendant’s Response was timely and Plaintiff offers no basis for her argument that Defendant’s Response was filed late. Additionally, the Court should deny the Reply Motion because Plaintiff continues to make the same meritless arguments and allegations that she had made throughout this case. There is no evidence that Plaintiff has obtained newly discovered evidence. For example, Plaintiff argues that she discovered new information about the petition to have her transferred circulated by Kevin Bailey. She also continues to argue that Laura Williams-Anderson was harassing her, Defendant told Dr. Cruey she had a guardian, and Debbie Zanikos accused Plaintiff of being a terrorist. Plaintiff has made these arguments throughout this case and does not explain what newly discovered evidence she has that supports these claims. Plaintiff also fails to explain how these allegations are relevant to her claims or how they would change the outcome of the Court’s prior orders. Nothing in Plaintiff’s repeated arguments would justify striking Defendant’s Response, and the Reply Motion should be denied. Finally, Plaintiff continues to claim that counsel for Defendants has misrepresented facts and has misled the Court. Plaintiff offers no support for these baseless allegations. Defendant’s counsel has consistently relied on arguments that are supported by evidence in the record. Plaintiff claims that records upon which Defendant relies are “forged” and “falsified” without offering any proof that is the case. These unsupported allegations are insufficient to justify striking Defendant’s Response. Case 2:17-cv-00741-JS Document 117 Filed 12/04/18 Page 3 of 5 4 The Court should deny the Reply Motion because it is not permissible under the Rules of Civil Procedure and Plaintiff continues to rely on the same groundless allegations that she has made throughout this case without producing any new evidence that would justify vacating this Court’s prior order. Respectfully submitted, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. /s/ Nonnie L. Shivers Nonnie L. Shivers (Pro Hac Vice) 2415 East Camelback Road, Suite 800 Phoenix, Arizona 85016 (602) 778-3706 (602) 778-3750 (fax) nonnie.shivers@ogletree.com K. Clark Whitney (I.D. No. 201052) 1735 Market Street, Suite 3000 Philadelphia, Pennsylvania 19103-7501 (215) 995-2800 (215) 995-2801 (fax) clark.whitney@ogletreedeakins.com December 4, 2018 Attorneys for Defendant American Airlines, Inc. Case 2:17-cv-00741-JS Document 117 Filed 12/04/18 Page 4 of 5 5 CERTIFICATE OF SERVICE I hereby certify that, on this 4th day of December 2018, a true and correct copy of the attached document was filed via the Court’s ECF system and served by U.S. Certified Mail, Return Receipt Requested, to the Pro Se Plaintiff listed below: Sheida Hukman P.O. Box 96321 Las Vegas, NV 89193 Pro Se Plaintiff /s/ Diane Kelly 36467318.1 Case 2:17-cv-00741-JS Document 117 Filed 12/04/18 Page 5 of 5