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
2
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
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