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Derma Pen, LLC v. 4Everyoung Ltd.

United States District Court, D. Utah, Central Division

May 8, 2017

DERMA PEN, LLC, Plaintiff,
v.
4EVERYOUNG LIMITED, BIOSOFT AUST PTY LTD d/b/a DERMAPENWORLD, EQUIPMED INTERNATIONAL PTY LTD d/b/a DERMAPENWORLD, and STENE MARSHALL d/b/a DERMAPENWORLD, Defendant.

          MEMORANDUM DECISION AND ORDER DENYING [1023] MOTION TO STRIKE; and DENYING [1033] MOTION TO STRIKE

          David Nuffer District Judge.

         District Judge David Nuffer Defendant Stene Marshall filed two motions: Motion to Strike in Part Plaintiff's Proposed Findings of Fact and Conclusions of Law (Motion to Strike Findings and Conclusions)[1] and Motion to Strike in Part Plaintiff's Proposed Final Judgment (Motion to Strike Final Judgment).[2]Derma Pen, LLC opposes both motions.[3] Marshall submitted reply memoranda.[4] Derma Pen objected to Marshall's Reply Supporting Motion to Strike Findings and Conclusions on numerous grounds.[5]

         For the reasons stated below, both motions are DENIED.

         DISCUSSION

         Marshall is proceeding pro se.[6] Therefore, his papers will be construed liberally and held to a less stringent standard than work drafted by lawyers.[7] However, Marshall's pro se status does not relieve him from complying with the rules, and the court will not act as his advocate.[8]

         1. The Motion to Strike Findings and Conclusions is denied.

         Among other reasons, [9] Marshall's Motion to Strike Findings and Conclusions must be denied because it does not comport with the local rules and because a certificate of his default has been entered.

         a. The Motion to Strike Findings and Conclusions does not conform with local rules.

         DUCivR 7-1(a)(1)(B) states that a memorandum in support of a motion must include “[o]ne or more additional sections including a recitation of relevant facts, supporting authority, and argument.” And DUCivR 7-1(c) states:

If any memorandum in support of or opposition to a motion cites documents, interrogatory answers, deposition testimony, or other discovery materials, relevant portions of those materials must be attached to or submitted with the memorandum when it is filed with the court and served on the other parties.

         Marshall does not cite any supporting authority (legal or factual) in the Motion to Strike Findings and Conclusions. In the Reply Supporting Motion to Strike Findings and Conclusions, Marshall adds what are at times cryptic references to documentary evidence, [10] but fails to attach any document. This does not suffice. A court cannot be required to hunt through a docket containing more than a thousand entries with many voluminous filings. The movant is obligated to marshal evidence.

         Therefore, the Motion to Strike Findings and Conclusions is insufficient and merits denial.

         b. The procedural posture prevents argument contesting liability.

         “The defaulting party cannot contest the fact of his liability unless the entry of default is vacated under Rule 55(c).”[11]

         The clerk entered a certificate of default judgment against all defendants.[12] None of the defendants sought to set aside the entry of default under Federal Rule of Civil Procedure 55(c). Yet in this Motion to Strike Findings and Conclusions Marshall contests liability.[13] Therefore, the Motion to Strike Findings and Conclusions is improper and merits denial.

         2. The Motion to Strike Final ...


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