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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF XXXXX

XXXX DIVISION

XXXXXXXXXX,

Plaintiff,

v.                                                                     Case No.: 6:07-cv-01053-JA-KRS

XXXXXXXXXXX,

Defendant.

______________________________/

PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S UNTIMELY RESPONSE IN

OPPOSITION TO PLAINTIFF’S OMNIBUS MOTION IN LIMINE

COMES NOW the Plaintiff, by and through her undersigned counsel, and hereby files her Motion to Strike the Defendant’s Untimely Response in Opposition (Doc. 160) to Plaintiff’s Omnibus Motion In Limine (Doc. 150). In support thereof, Plaintiff states as follows:

      1. Plaintiff filed her Omnibus Motion in Limine on October 6, 2007.

      2. Pursuant to this Court’s Case Management and Scheduling Order (“CMSO”) (Doc.

23), Section II, (E), “Each party opposing any written motion, shall file, within eleven

days after being served with such motion, a legal memorandum with citation of

authorities in opposition to the relief requested.” (emphasis added.) (footnote

omitted.)

      3. Footnote 2 of the CMSO clearly states that “Counsel will note that this order

modifies Local Rule 3.01(b) . . . .Intermediate Saturdays, Sundays . . . are included

in the computation of periods of eleven days or more. See Fed.R.Civ.P. 6(a). If the

motion was served by mail or by electronic delivery through CMF/ECF, add three

days to the prescribed period.” (emphasis added.)

      4. Therefore, because Plaintiff served her Omnibus Motion in Limine on October 6,

2007, through the Court’s CMF/ECF system, the Defendant’s deadline to file its

Response in Opposition was October 20, 2008.

      5. Defendant filed its untimely Response in Opposition to Plaintiff’s Omnibus Motion In

Limine on October 23, 2008. Pursuant to this Court’s CMSO, Defendant’s Response

was filed three days late and, thus, should be stricken from the docket.

      6. Plaintiff anticipates that the Defendant will likely argue that its three mailing days

were tolled over the weekend of October 18th and 19th.

      7. However, according to the Annotated Federal Rules of Civil procedure, Rule 6(d)

(formerly Rule 6(e))(2005), “Three days are added after the prescribed period

otherwise expires under Rule 6(a). Intermediate Saturdays, Sundays, and legal

holidays are included in counting these added three days.” (emphasis added.)

      8. Moreover, even if the Defendant’s deadline to file it Response in Opposition was, in

fact, tolled over the weekend of October 18th and 19th, the Defendant’s Response was

still due on October 22, 2008. The Defendant failed to file its Response on October

22, 2008.

      9. Consequently, there is no question that the Defendant’s Response was filed late, and

should be denied with prejudice.

      10. This Motion is being filed in good faith and not for the purpose of harassment or

delay.

WHEREFORE, for the reasons cited herein, Plaintiff respectfully moves this Court to strike the Defendant’s Response in Opposition to Plaintiff’s Omnibus Motion In Limine.

MEMORANDUM OF LAW

      This Court has the authority to deny or strike any motions or responses that are not filed

in compliance with the Court’s CMSO, or with Local Rule 3.01(b). As stated above, Section II,

(E), of the CMSO requires that “[e]ach party opposing any written motion, shall file, within 

eleven days after being served with such motion, a legal memorandum with citation of authorities 

in opposition to the relief requested.” (footnote omitted.)

      The Defendant failed to files it Response within 11 days after being served with

Plaintiff’s Omnibus Motion In Limine, and failed to provide any reason as to why its Response

was filed late. Therefore, the Defendant’s Response should be stricken from the record and

denied with prejudice because it was not filed in accordance with this Court’s CMSO. See

generally Mosley v. MeriStar Management Co., LLC, 137 Fed.Appx. 248 (11th Cir. 2005)

(finding no abuse of discretion in district court's striking opposition to a motion for summary

judgment which was filed four days late and contained no request for enlargement or explanation

for untimeliness); and Young v. City of Palm Bay, Florida, 358 F.3d 859, 864 (11th Cir. 2004)

(finding no abuse of discretion in district court's refusal to consider an untimely opposition to

summary judgment motion); and Miro, LLC v. Ass’n Cas. Ins. Co., 2006 WL 5111112 (M.D.

Fla., May 28, 2008) (Court denied untimely motion in limine absent valid justification for failure

to comply with CMSO deadline).

CONCLUSION

      Based upon the foregoing reasons, the Defendant’s Response in Opposition to Plaintiff’s

Omnibus Motion In Limine should be stricken from the docket.

CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 3.01(g)

      Pursuant to Local Rule 3.01(g), counsel for Plaintiff conferred with counsel for the

Defendant in a good faith effort to resolve the issues raised by this Motion. Counsel for the

Plaintiff and counsel for the Defendant were unable to agree on a resolution to the issues raised

herein.

DATED this 27th day of October, 2008.

Respectfully submitted,

/s/ XXXXXXX____

XXXXXXXXXX, P.A.

XXXXX YYYYY Avenue, Suite 200

ZZZZZZZ, Florida 327xx

Phone:

Fax:

Attorneys for Plaintiff