SunSouth Bank v. NashYork, LLC et al

Filing 36

OPINION AND ORDER that dfts 24 MOTION to Strike and plf's 33 MOTION to Strike are denied, as further set out in the order. Signed by Honorable Judge Myron H. Thompson on 2/11/2013. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

SUNSOUTH BANK,
Plaintiff,
v.
NASHYORK, LLC; et al.,
Defendants.

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CIVIL ACTION NO.
1:12cv918-MHT
(WO)

OPINION AND ORDER
It is ORDERED that defendants NashYork, LLC, Dwight
P. Wiles, James C. Stroud, Herbert L. Graham, and Elliot
Levine’s

motion

to

strike

factual

statements

in

plaintiff’s brief (Doc. No. 24) and plaintiff SunSouth
Bank’s motion to strike affidavits (Doc. No. 33) are
denied under the conditions set forth below.
***
The Federal Rules of Civil Procedure delineate the
general use of a motion to strike: “The court may strike
from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”

Fed. R.

Civ. P. 12(f) (emphasis added).

The terms of the rule

make clear that “[o]nly material included in a ‘pleading’
may be subject of a motion to strike....
or

memoranda,

objections,

or

Motions, briefs

affidavits

attacked by the motion to strike.”

may

not

be

2 James Wm. Moore, et

al., Moore's Federal Practice § 12.37[2] (3d ed. 1999).
Therefore, as an initial matter, both the plaintiff’s and
the defendants’ motions to strike must be denied as to
all non-pleadings, and, in this case, that would be all
documents at issue.

See Jeter v. Montgomery County, 480

F. Supp. 2d 1293, 1295-96 (M.D. Ala. 2007) (Thompson,
J.);

Fed.

R.

Civ.

P.

7(a)

(a

“pleading”

is

“(1)

a

complaint; (2) an answer to a complaint; (3) an answer to
a

counterclaim

designated

as

a

counterclaim;

(4)

an

answer to a crossclaim; (5) a third-party complaint; (6)
an answer to a third-party complaint; and (7) if the
court orders one, a reply to an answer.”).
This
strike.

court

often

addresses

improper

motions

to

However, in a puzzling twist, the defendants

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here opted to submit to the court such a defective strike
motion

despite

defective.

knowing

that

it

was

procedurally

See Defs.’ Mot. to Strike (Doc. No. 24) at 2

(“In Jeter, the Court held that a motion to strike was
appropriate only for a ‘pleading’ and not for ‘[m]otions,
briefs
(citing

or
480

memoranda,
F.

Supp.

objections,
at

or

1296).

affidavits.’”)
Apparently,

the

defendants, citing Jeter’s explanation of proper usages
for

motions

to

strike,

took

that

explanation

as

an

invitation to submit knowingly an improper strike motion
in contravention of the Federal Rules of Civil Procedure.
The court now iterates what it has stated on numerous
occasions and should already be clear.

Motions to strike

should be used only to ask the court to “strike from a
pleading

an

insufficient

defense

or

any

redundant,

immaterial, impertinent, or scandalous matter.”
Civ. P. 12(f) (emphasis added).

Fed. R.

Motions to strike should

not be used to ask the court to disregard unsupported
factual statements contained in an opponent’s brief.

3

The

proper forum for those sorts of arguments is an ordinary
responsive brief.

In this case, the defendants submitted

such a reply brief while electing to omit from it any
arguments
being

about

their

unsupported,

opponent’s

instead

factual

erroneously

contentions in the strike motion.

allegations

putting

those

See Defs.’ Reply Br.

(Doc. No. 25).
Likewise, the plaintiff’s “motion to strike false
affidavits and response to defendants’ motion to strike”
is flawed.

It simultaneously seeks to strike affidavits

submitted by the defendants in connection with their
motion to dismiss or transfer and responds to arguments
made in the defendants’ motion to strike.

For the

reasons already explained, these are not proper usages of
a strike motion.
The court is capable of sifting evidence, as required
by motions to dismiss or transfer, without resort to an
exclusionary process, and the court will not allow the

4

motion-to-dismiss-or-transfer proceedings to degenerate
into a battle of motions to strike.
DONE, this the 11th day of February, 2013.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE