Case 2:14-cv-00876-DN-DBP Document 185 Filed 10/16/15 Page 1 of 12

Marcus R. Mumford (12737)

MUMFORD PC
405 South Main Street, Suite 975
Salt Lake City, Utah 84111
Telephone: (801) 428-2000
Email: mrm@mumfordpc.com
Attorney for Plaintiff Utah Republican Party
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UTAH REPUBLICAN PARTY,
CONSTITUTION PARTY OF UTAH,

PLAINTIFFS OPPOSITION TO
DEFENDANTS MOTION TO
STRIKE [178]

Plaintiff and Intervenor,

Case No. 2:14-cv-00876-DN

Plaintiff,

v.

Judge David Nuffer

Magistrate Judge Dustin B. Pead

GARY R. HERBERT, et al.,

Defendants.

Defendants counsel, David Wolf and Parker Douglas, are shameless in seeking to have
this Court enforce a 4:30 p.m. deadline on certain filings that they themselves have violated,
repeatedly, without leave of court, and without even acknowledging those matters to the Court
in their motion to strike [178]. Thus far in the case, Plaintiffs undersigned counsel has preferred
to show thick skin and not stoop to the level of Wolf and Parker in how they have misled this
Court and disparaged opposing counsel. But they have demonstrated a fatal lack of candor to the
Court in their motion to strike, which violates basic principles of fairness and the applicable
ethical rules. For example, not only do Wolf and Parker omit their own violations of the 4:30
p.m. deadline for filings included in the Courts scheduling order [43], they affirmatively
misrepresent that they have continue[d] to abide by the Courts deadlines, where Plaintiff has

Case 2:14-cv-00876-DN-DBP Document 185 Filed 10/16/15 Page 2 of 12

not.1 Further, Wolf and Parker argue to the Court that its rulings on their motion to strike will not
be overturned on appeal absent an abuse of discretion,2 but they would have this Court apply the
rules and deadlines unequally, which is almost the very definition of an abuse of discretion.3
And finally, when they have found themselves running up against deadlines, Wolf and Parker
have obtained from Plaintiffs counsel courtesies and extensions of weeks at a time, while
denying the same to Plaintiffs counsel. This frivolous motion to strike [178] must be the final
time the Court allows them to seek advantage by way of procedural gamesmanship and halftruths.
Wolf and Parkers motion to strike is also misleading in how it omits a significant email
exchange that took place on October 9, 2015, between the parties in advance of their filing
oppositions to the respective motions for summary judgment. On October 9, at 1:01 p.m.,
Plaintiffs counsel reached out to Wolf, Parker, and counsel for the Constitution Party of Utah
(CPU), and others, to request that all sides agree to extend by one-day the deadline to file their
respective objections.4 At 1:02 p.m., CPUs counsel responded to state he had no objection.5 At
3:29 p.m., Wolf responded with a lengthy email about how the one day request would extend to
several days on account of the Columbus Day holiday and that he had planned to prepare his
reply over the weekend (October 10th , 11th and 12th), so that I can address other issues in

Doc. 1378 at 4.
Doc. 178 at 4 n.10.
3
See Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013) (declining to find an abuse of
discretion in relaxing procedural rules, so long as the district court does not enforce (or relax)
the rules unequally as between the parties) (quoting Stevo v. Frasor, 662 F.3d 880, 887 (7th
Cir. 2011) (emphasis added)).
4
See attached Exhibit 1.
5
Id.
2

Case 2:14-cv-00876-DN-DBP Document 185 Filed 10/16/15 Page 3 of 12

other cases next week.6 At 4:11 p.m., I responded to ask if the parties agreed to file[] by
tomorrow midnight, he would suffer the same prejudice?7 Wolf and Parker did not respond to
that last email, and thus I worked feverishly to file the Partys opposition before October 10,
2015.8 The email exchange reveals several additional considerations that Wolf and Parkers
motion does not acknowledge. First, it makes clear that Plaintiffs counsel was not, as Wolf and
Parker asserted, seeking to gain[] the advantage of seeing Defendants opposition to the
Constitution Partys motion for summary judgment prior to preparing and submitting his
opposition.9 Second, nowhere does Wolfs email indicate that Defendants intend to change
course in the case and now demand compliance with the 4:30 p.m. deadline that he and Parker
previously violated repeatedly, without leave of court. To the contrary, Wolfs email proves that
he did not suffer any prejudice, even by the filing of the Appendix [177] ten minutes after
midnight on the morning of October 10, 2015. Wolf asserted in that email that he was going to
work on the reply over the weekend, and he received the opposition and the Appendix in
advance of the weekend.
The Court must also realize how Plaintiffs counsel has been constrained by the different
incentives at play from engaging in tit-for-tat. But this cannot continue. Plaintiff Utah
Republican Party (the Party) urges the Court not only to deny Defendants motion to strike, but
to sanction Wolf and Parker for their lack of candor and gamesmanship, all put forward for the

Id.
Id.
8
Doc. 176. As indicated in the email, I had also taken the lead amongst the defense group in
preparing a response to James Proffer, that was jointly filed that same evening in the matter
United States v. Johnson, et al., Case No. 11-cr-501 (D. Utah), pending before this Honorable
Court.
9
Doc. 178 at 4.
7

Case 2:14-cv-00876-DN-DBP Document 185 Filed 10/16/15 Page 4 of 12

purpose of misdirecting the Courts attention from their own more serious and substantive
violations of the rules.
RELEVANT FACTS
1.

While the Courts scheduling order, dated February 9, 2015, but not entered until

February 17, 2015, indeed states on the first page ALL TIMES 4:30 PM UNLESS
INDICATED,10 until now, Defendants have never treated the 4:30 p.m. restriction as a deadline
for filing documents with the Court.
2.

The Courts scheduling order sets a 4:30 p.m. deadline for a limited number of

court filings, including the Defendants response to the amended motion for preliminary
injunction, which was due March 31, 2015, at 4:30 p.m., and the parties summary judgment
briefing.11
3.

Contrary to Wolf and Parkers claim that they have continue[d] to abide by the

Courts deadlines,12 where the Party has not, on March 31, 2015, they did not file their response
brief, as required by the Courts Scheduling Order, until 11:58 p.m.13 And that was not even their
actual opposition brief.
4.

Wolf and Parker did not file their exhibits until the following day, April 1, 2015,

at 12:05 a.m.14
5.

Wolf and Parker then filed a corrected version of their opposition brief two

10

Doc. 43.
Doc. 43 at 2, 5-6.
12
Doc. 178 at 4.
13
Doc. 68. Meaning that, pursuant to the 4:30 p.m. deadline [43 at 2], their opposition was
approximately 7.5 hours late.
14
Doc. 69.
11

Case 2:14-cv-00876-DN-DBP Document 185 Filed 10/16/15 Page 5 of 12

days later, on April 2, 2015, at 7:28 a.m.15

6.

Contrary to their complaint against the Party here,16 Wolf and Parker did not file

any motion for an extension of time or seek leave of court in connection with any of these three
filings.
7.

In fact, the only leave Defendants sought was leave to file their original brief,

which had 54 pages of argument, where the applicable limit was 25 pages.17
8.

The Court granted that motion before Plaintiff had any opportunity to respond.18

9.

The Court will recall the prejudice Plaintiff suffered as a result. The parties had

set a tight briefing schedule in advance of the April 10 hearing, as reflected in the Courts
scheduling order.19
10.

Prior to filing their opposition, Wolf and Parker never indicated the need to file a

brief more than double the allowable length.

11.

In response, the Party filed an unopposed motion for one extra day to file its

reply brief.20 The Court gave the Party 14 hours.21

12.

That was the deadline that I missed, and that the Court continues to raise as

grounds justifying its order striking the Partys motion for summary judgment.22
13.

But in continually revisiting that episode, I fear that the Court has forgotten the

serial missteps and rule violations by Defendants counsel leading to it.

15

Doc. 71.
Doc 178 at 2, 5.
17
Doc. 67.
18
Doc. 70.
19
Doc. 43.
20
Doc. 73.
21
Doc. 74.
22
Doc. 171.
16

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14.

If the Court is going to apply the rules severely, I would ask that the Court apply

them equally severely as against Defendants counsel.

15.

In addition to the foregoing example, neither the Party nor Wolf and Parker

objected when the Constitution Party filed its Motion for Partial Summary Judgment, on
September 21, 2015, at 5:54 p.m.,23 or when the Party filed its Supplemental Memorandum in
Support re Amended Motion for Preliminary Injunction at 10:14 pm.24
16.

Likewise, until issuing its recent Order to Show Cause25, the Court has never

taken issue with papers filed after 4:30 pm. Aside from the fact that all of the parties to this
action have filed papers after 4:30 pm without leave of Court and without any issue, the Courts
September 24 Order did not include any reference to a 4:30 p.m. filing deadline.26
17.

Likewise, the Courts Order Striking Motion for Summary Judgment was not

based on a failure to file by 4:30 p.m., but rather, because [n]othing was filed on September 22,
2015.27
18.

As set forth above, Wolf and Parkers motion to strike also omits the good faith

efforts of the Party to resolve any timing issues without Court intervention.
19.

Instead of responding in good faith to counsels communication, Wolf and Parker

ignored it, opting to pursue a gotcha tactic that omits their own violations of the 4:30 p.m.
deadline that they now seek to enforce strictly against Plaintiff.
ARGUMENT

23

See Dkt 163.

See Dkt 65.
25
Dkt 182.
26
Dkt 171 at 4-5.
27
Dkt 171 at 2.
24

Case 2:14-cv-00876-DN-DBP Document 185 Filed 10/16/15 Page 7 of 12

I.

Defendants Motion To Strike Is Not Properly Brought Under Any Rule.

Defendants have made their Motion to Strike [p]ursuant to Fed. R. Civ. P. 12(f) and

DUCivR7-1 (sic),28 but neither rule affords Defendants the relief they request. With respect to
Rule 12(f), it is well-established that only material included in a pleading may be the subject
of a motion to strikeMotions, briefs, memoranda, objections, or affidavits may not be attacked
by the motion to strike.29 Likewise, Defendants have not cited any provision of DUCivR 7-1
that allows for motions to strike, because there is none. If Defendants want to accuse the Party of
technical violations, Defendants must be held to the same standard. Defendants Motion to Strike
is not properly brought under Rule 12(f) or Local Rule 7-1 and should be disregarded as a result.
II.

Motions To Strike Are Drastic And Not Favored.

Even if the Court considers Defendants Motion to Strike, it is a drastic remedy and

because a motion to strike may often be made as a dilatory tactic, motions to strike under Rule
12(f) generally are disfavored.30 Defendants Motion to Strike is dilatory and should be
disregarded.
The Supreme Court has long held that [i]t is too late in the day and entirely contrary to
the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the
basis of mere technicalities.31 The Federal Rules reject the approach that pleading is a game

28

Dkt 178 at 2.
Lane v. Page, 272 F.R.D. 581, 587-88 (D.N.M. 2011) (citations omitted).
30
Id. at 587.
31
Foman v. Davis, 371 U.S. 178, 181 (1962); see also Denver & Rio Grande Western R. Co. v.
Union Pacific R. Co., 119 F.3d 847, 848 (10th Cir. 1997) (Federal Rules are founded upon a
policy which favors deciding cases on the merits as opposed to dismissing them because of
minor technical defects.)
29

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of skill in which one misstep by counsel may be decisive to the outcome.32 Likewise, the
Federal Rules were not designed to encourage procedural gamesmanship, with lawyers seizing
upon mistakes made by their counterparts in order to gain some advantage.33 But that is exactly
what Wolf and Parker have done here.
For the first time in this case, Wolf and Parker now characterize the filing of papers after
4:30 pm as ignor[ing] the Courts scheduling order, disregard[ing] the deadlines, and
breaking the rules.34 But if that is true, it must apply equally, and Wolf and Parker cannot
dispute that they violated the 4:30 p.m. deadline on at least three occasions. The Party would
submit that their lack of candor is worse than Plaintiffs counsel missing a deadline by several
hours or minutes.35 These tactics should not be condoned.
III.

Defendants Motion To Strike Is Without Basis.

Although admitting that they do not seek the dismissal of Plaintiffs claims[,]

Defendants ask the Court to consider several factors that govern dismissal and/or the striking of
pleadings, neither of which are at issue here.36 But even if applicable, the factors referenced by
Defendants weigh in the Partys favor.
The first factor is actual prejudice. Contrary to Defendants belief, there was no actual
prejudice, not even some measure of prejudice.37 The Partys opposition was filed a matter of
hours after 4:30 pm. Defendants cannot reasonably claim actual prejudice on this basis. In
32

Id. at 181-82.
Beach Mart, Inc. v. L & L Wings, Inc., 302 F.R.D. 396, 405 (E.D.N.C. 2014) (citations
omitted).
34
Dkt 178 at 3-4.
35
Insistence upon candor to the court is perhaps the most important ethical precept of all.
United States v. Gonzales, 344 F.3d 1036, 1048 (10th Cir. 2003) (Brorby, J., dissenting).
36
Dkt 178 at 4.
37
Id.
33

Case 2:14-cv-00876-DN-DBP Document 185 Filed 10/16/15 Page 9 of 12

Murray v. Archambo, the Tenth Circuit considered a response that was received one day after
the fifteen-day response period.38 The Murray court was clear: No prejudice to defendants
could have resulted from this delay.39 Defendants have offered nothing to distinguish this case
from Murray.
Defendants only claim of prejudice, which was never raised in the parties October 9
correspondence, is that Plaintiff gained the advantage of seeing Defendants opposition to the
Constitution Partys motion for summary judgment.40 But the email proposal sent to Wolf and
Parker on October 9, 2015, contradicts that assertion. Perhaps more importantly, [f]ederal court
is not a forum in which disputes are resolved through the element of surprise.41 Litigation is
less a game of blind mans buff and more a fair contest with the basic issues and facts disclosed
to the fullest practicable extent.42 Defendants cannot claim actual prejudice simply because they
showed their cards first. Defendants have done nothing more than claim that they were deprived
of the element of surprise. But Defendants position is directly contrary to prevailing policy and
only encourages parties to wait until the very last minute to file. Just as in Murray, Defendants
have not shown actual prejudice, or even some measure of prejudice for that matter.43
The second factor is whether there was interference with the judicial process.44
Defendants do not even address this factor, and for good reason. Along with finding that a one-

38

132 F.3d 609, 611 (10th Cir. 1998).

Id.
40
Id.
41
Wheeler v. Aliceson, Case No. 1:12-cv-860, 2015 WL 3507369, at *5 (E.D. Cal. June 3, 2015)
(slip copy); see also United States v. King, 461 F.2d 53, 57 n.5 (8th Cir. 1972) ([t]he trial of a
civil case is no longer a game of surprises.)
42
Id. (quoting United States v. Proctor & Gamble Co., 356 U.S. 677, 682 (1958)).
43
Id. at 4.
44
Id.
39

Case 2:14-cv-00876-DN-DBP Document 185 Filed 10/16/15 Page 10 of 12

day delay did not constitute prejudice, the Murray court also stated that a one day delay could
not have caused interference with the judicial process.45 This factor also weighs in the Partys
favor.
The third factor is the culpability of the litigant.46 Not surprisingly, Defendants latch onto
the Courts September 24 Order.47 But the history of this case shows that, but for the September
24 Order, Defendants would have never raised issue with papers filed after 4:30 pm. Indeed, not
only are Defendants guilty of the same practice, but they never raised issue before. Defendants
are simply seizing on a perceived opportunity to gain some advantage. As already explained, the
Court should not condone such practices. And Plaintiffs counsel intends to respond to the
Courts order to show cause to explain how the Court has been misled by Wolf and Parker in the
statements it has made regarding Plaintiffs counsels conduct.
In addition to the foregoing, the Court has never taken issue with papers filed after 4:30
pm. Indeed, the practice in this case has been the opposite; every party has submitted a filing
after 4:30 pm without issue. The Court did not take issue when the Partys supplemental brief
was filed at 10:54 pm and it did not take issue when Defendants did the same exact thing they
now complain of, that is, file a response minutes before midnight and then submit the exhibits
the next day.48 Allegations that counsel for the Party waited a mere fifteen days before again
violating the Courts scheduling order requirements or at the very first opportunity
disregarded the Courts deadline yet again,49 are not well taken. The Court should not sanction

45

Murray, 132 F.3d at 611.

Dkt 178 at 4.
47
See id. at 5.
48
See Dkt 68 & 69.
49
Dkt 178 at 5.
46

10

Case 2:14-cv-00876-DN-DBP Document 185 Filed 10/16/15 Page 11 of 12

the Party for filing something after 4:30 pm where all of the parties have done the same thing in
this case with absolutely no indication that such a practice was unacceptable, much less
sanctionable.
The Courts Order to Show Cause certainly suggests that the Court desires to enforce a
4:30 pm filing deadline moving forward. But it would be improper for the Court to punish the
Party where the other parties to this action have engaged in the same conduct without issue and
where the Court has previously given no indication that such conduct was unacceptable. Even if
the Party is culpable for engaging in what appeared to be an accepted practice, the level of
culpability certainly does not outweigh[] the judicial systems strong predisposition to resolve
cases on their merits.50 This is especially true when the other aggravating factors weigh
exclusively in the Partys favor.51
Finally, the Court makes an issue of the Appendix being filed ten minutes after midnight.
But Plaintiff would point out that it is theonly party to comply with Local Rule 56-1(f) in that
respect, requiring that [a]ll evidence offered in support of or opposition to motions for summary
judgment must be submitted in a separately filed appendix with a cover page index. Defendants
did not even attach the evidence offered in support of their filings, much less in the form of an
appendix. Nonetheless, counsel was not able to file the appendix before midnight because as
counsel was in the process of filing the Partys opposition, counsel received an error message
from the CM/ECF system that the Partys opposition was not a well formed pdf. This resulted
in a delay of several minutes. Ultimately, the appendix was submitted less than 10 minutes after
midnight due to further unexpected delays in combining exhibits and uploading the appendix.
50
51

Hancock v. City of Oklahoma City, 857 F.2d 1394, 1396 (10th Cir. 1988).
Id.
11

Case 2:14-cv-00876-DN-DBP Document 185 Filed 10/16/15 Page 12 of 12

But, given that the rules require the appendix to be a separately filed document, counsel did
not believe that filing the appendix after midnight constituted a violation of the deadline for
filing responses. See, e.g., Montgomery v. NLR Co., Case No. 2:05-cv-251, 2007 WL 2792833,
at *7 (D. Vt. Sep. 24, 2007) (refusing to strike summary judgment exhibits where plaintiffs filed
their Response within the time limits permitted by the local rules and where [t]he local rules
do not prohibit supplemental filings.). Where the local rules in Montgomery did not prohibit
supplemental filings, the local rules here actually require that exhibits be contained in a
supplemental filing, i.e. a separately filed document. DUCivR 56-1(f). Thus, while counsel
made every effort to file the Partys appendix of exhibits before midnight, counsel did not
believe that filing the appendix after midnight violated the Courts scheduling order or otherwise
constituted sanctionable conduct; especially where Defendants did the exact same thing in March
and April without issue.
Respectfully submitted this 16th day of October, 2015.
/s/ Marcus R. Mumford
Counsel for Plaintiff

12

Case 2:14-cv-00876-DN-DBP Document 185-1 Filed 10/16/15 Page 1 of 4

From: Marcus Mumford <mrm@mumfordpc.com>

Date: October 9, 2015 at 4:11:57 PM MDT
To: David Wolf <dnwolf@utah.gov>
Cc: Collin Simonsen <collin@mountainwestlaw.com>, Greg Simonsen
<greg@mountainwestlaw.com>, Parker Douglas <pdouglas@utah.gov>, Valerie Valencia
<vvalencia@utah.gov>, Mark Thomas <mjthomas@utah.gov>, Jacey Skinner
<jskinner@utah.gov>
Subject: Re: Mediation and request for extension
So filed by tomorrow midnight - you suffer same prejudice? Or we both get what we want?
Sent from my iPhone
On Oct 9, 2015, at 3:29 PM, David Wolf <dnwolf@utah.gov> wrote:
Marcus:
I apologize for not responding to your email sooner. I was involved in a hearing
before Judge Waddoups today.
Monday, October 12th, is a holiday (Columbus Day). Accordingly, your request
for a one-day extension of time will result in your opposition being filed on
Tuesday, October 13th. So, practically speaking, you are asking for a 4-day
extension of time.
Pursuant to the Court's scheduling order, my reply to your opposition is due on
October 19th. I too have other work-related responsibilities. Accordingly, I had
planned on preparing my reply memorandum over the weekend (October 10th,
11th and 12th), so that I can address other issues in other cases next week. But, if
I don't have your opposition until next Tuesday, I can not utilize this weekend
(and the holiday) to prepare my reply. It is on this basis that I will not consent to
your request for an extension of time and respectfully ask that you comply with
the Court's briefing schedule.
On Fri, Oct 9, 2015 at 1:08 PM, Marcus R. Mumford <mrm@mumfordpc.com>
wrote:
Thankyou.David?
1

Case 2:14-cv-00876-DN-DBP Document 185-1 Filed 10/16/15 Page 2 of 4

From:CollinSimonsen
Date:Friday,October9,2015at1:02PM
To:MarcusMumford,DavidWolf
Cc:GregSimonsen,JaceySkinner
Subject:RE:Mediationandrequestforextension

Marcus,Ihavenoobjectiontoyoutakinganextraday.

From: Marcus R. Mumford [mailto:mrm@mumfordpc.com]

Sent: Friday, October 09, 2015 1:01 PM
To: David Wolf; Collin Simonsen
Cc: Mark Thomas; James Evans; Greg Simonsen; Spencer Cox; Jacey Skinner
Subject: Mediation and request for extension

Twothings:

Firsttoall,
Iamwaitingforsomefinalinputbeforecirculatingthedraftofthelatestproposal.Irealizetimeistight,andI
hopetocirculatelaterthisafternoon.

SecondtoDavidandCollin,
Iwritetoalsoproposethatwemovethecourttoextendbyadayourresponsestopendingmotionsfor
summaryjudgment.Idontknowwhereyouguysareinyourprep.Ihavebeeninthemiddleofthiswitha
numberofotherprojects.IactuallyhaveanotherbriefduetodayinfrontofJudgeNufferinamultidefendant
case,wherewearerespondingtoadocumentbydocumentanalysisofhearsayexceptionsassertedon346
documents.

Also,andthisiskindofapersonalrequest,Ihavetwonewassociateswhohavearrangedtobeadmittedtothe
barthisafternooninaprivateceremony.Weplannedabitofacelebration.ItwouldnotbethefirstpartyIever
missed,butIdliketoattendifpossible.

Iunderstandthatthescheduleinthiscasewassetonamuchtightertimeframethantherulesordinarilyprovide,
butIbelievethatoneextradaywillnotprejudicethecourtorparties.Idproposethatwefileajointstipulation
ifthatworksforeveryone.Thanksinadvance.
Marcus

Case 2:14-cv-00876-DN-DBP Document 185-1 Filed 10/16/15 Page 3 of 4

From:JaceySkinner
Date:Sunday,October4,2015at8:47PM
To:MarcusMumford
Cc:GregBell,collin,MarkThomas,DavidWolf,JamesEvans,GregSimonsen,SpencerCox
Subject:ChangeinroomlocationCapitolBoardRoom

Everyone,

Iamsorryforthelatenotice,butwehaveaconflictwiththeSenatecaucusfortomorrow.Wewillbemeetingin
theCapitolBoardRoominstead.(EastendoftheRotunda)

Thankyou,

Jacey

JaceySkinner
GeneralCounsel
OfficeoftheGovernor
StateofUtah

--

Very truly yours,

David Wolf
Director of Constitutional Defense and Special Litigation
160 East 300 South, 6th Floor
P.O. Box 140856
Salt Lake City, Utah 84114-0856
Telephone: (801) 366-0100
Fax: (801) 366-0101
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Case 2:14-cv-00876-DN-DBP Document 185-1 Filed 10/16/15 Page 4 of 4

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