Opinion
3:22-cv-01267-HZ
02-05-2023
DERREK DWIGHT GILLIAM, an individual Plaintiff, v. CAIN PETROLEUM INC., an Oregon Corporation Defendant.
Derrek Dwight Gilliam Pro Se Bradley J. Krupicka Lewis Brisbois Bisgaard & Smith LLP Attorney for Defendant
Derrek Dwight Gilliam
Pro Se
Bradley J. Krupicka
Lewis Brisbois Bisgaard & Smith LLP
Attorney for Defendant
OPINION & ORDER
MARCO A. HERNANDEZ, DISTRICT JUDGE:
Plaintiff Derrek Dwight Gilliam recently filed three motions relating to the pleadings in this case. First, Plaintiff moves that the Court not grant Defendant Cain Petroleum Inc.'s answer, also styled as a motion to strike. ECF 22 (hereinafter “Motion to Strike”). Second, Plaintiff filed a motion titled a motion for clerical error. ECF 26. Third, Plaintiff filed a motion to supplement, strike, or not grant Defendant's answer. ECF 27 (hereinafter “Motion to Supplement”). For the following reasons, the Court strikes Plaintiff's Motion to Strike and Motion to Supplement, and denies Plaintiff's Motion for Clerical Error.
Plaintiff sued Defendant alleging racial discrimination in employment. Compl. 20-21, ECF 1. Plaintiff alleges he endured racist language and racial jokes in the workplace. Id. at 22. He also alleges he was never promoted to a full-time position. Id. Defendant answered the complaint, denying many of Plaintiff's allegations, asserting the affirmative defenses of failure to state a claim and failure to mitigate, and asking that the Court dismiss Plaintiff's complaint. Ans., ECF 19.
The Court first addresses defense counsel's concern over Plaintiff's failure to confer with Defendant before filing any of the present motions. Def. Resp. 1, ECF 25; Def. Resp. 2, ECF 30; Krupicka Decl. ¶ 2, ECF 31. The Local Rules of the U.S. District Court for the District of Oregon require that a party filing a motion make a good-faith effort to confer with the opposing party before filing a motion. LR 7-1. The party filing the motion must also certify in the first paragraph of every motion that he or she made a good-faith effort to confer with the opposing party. Id. At the Rule 16 conference held on January 3, 2023, the Court reminded Plaintiff of this rule. The Court will not deny any of Plaintiff's present motions for failure to confer with opposing counsel. However, the Court expects that Plaintiff will confer with Defendant's counsel in the future. The Court now turns to the substance of Plaintiff's motions.
In his Motion to Strike, Plaintiff disputes many of the responses Defendant made in its answer and asserts new facts in support of his own position. Similarly, in his Motion to Supplement, Plaintiff makes new allegations about Defendant's name and citizenship and asserts that Defendant is lying about these matters.Thus, while titled as motions, both filings are in effect replies to Defendant's answer.
Plaintiff also cites several rules from the Federal Rules of Evidence. The Court will not make evidentiary rulings at this stage of the case.
The function of an answer is to admit or deny the allegations in the complaint and assert any affirmative defenses that may apply. Fed.R.Civ.P. 8. Under the Federal Rules of Civil Procedure, a reply to an answer is allowed only if the court orders one. Fed.R.Civ.P. 7(a)(7). See also Thompson v. Walker, No. 09-CV-508-JE, 2010 WL 3952894, at *2 (D. Or. Oct. 7, 2010); King v. Valley State Prison, No. 120CV00024DADGSAPC, 2022 WL 1190457, at *1 (E.D. Cal. Apr. 21, 2022). The Court did not order a reply to Defendant's answer and concludes that there is no reason to order one. Therefore, Plaintiff's Motion to Strike and Motion to Supplement will not be considered and are stricken from the record. If Plaintiff wishes to allege more facts in support of his claim, he may seek to amend his complaint either by obtaining written consent from Defendant to file an amended complaint or by filing a motion to amend his complaint with the Court. See Fed.R.Civ.P. 15(a)(2).
Plaintiff's Motion for Clerical Error does not fully explain the relief sought. To the extent that it responds to statements or allegations in Defendant's answer, the Court treats it as a reply to an answer and declines to consider it.
This motion also appears to indicate that Plaintiff wishes to amend his complaint. Once the period for amending pleadings as a matter of course has elapsed, “a party may amend its pleading only with the opposing party's written consent or with the court's leave.” Fed.R.Civ.P. 15(a)(2). Plaintiff does not explain how he wants to amend his complaint, so the Court will not grant the motion. If Plaintiff wishes to amend his complaint, he is to proceed as follows: Plaintiff is to confer with Defendant regarding his proposed amendments. If Defendant does not oppose the amendments, then Plaintiff may ask for Defendant's written consent to the amended complaint and, if Defendant gives written consent, Plaintiff may file the amended complaint with the Court. Fed.R.Civ.P. 15(a)(2). If Defendant does oppose the amendment, or does not give written consent, Plaintiff may file a motion seeking permission from the Court to file an amended complaint. Id. If he files a motion, Plaintiff should explain why he wants to amend his complaint and attach a copy of the proposed amended complaint to the motion.
CONCLUSION
The Court STRIKES Plaintiff's Motion for Judge Not to Grant Answer [22] and Plaintiff's Motion to Supplement, Strike or Not Grant Defendant's Answer [27]. The Court DENIES Plaintiff's Motion for Clerical Error [26].
IT IS SO ORDERED.