Luster et al v. Ledbetter et al

Filing 81

OPINION AND ORDER that defendants Gordon Ledbetter, Chris Miles, and A. J. Renfroe's 39 Motion to Strike Affidavit Testimony is denied under the conditions as further set out in the order. Signed by Honorable Myron H. Thompson on 8/10/2009. (Attachments: #(1) Civil Appeals Checklist)(dmn)

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION ADAM LUSTER and CRYSTAL LUSTER, Plaintiffs, v. GORDON LEDBETTER, in his individual capacity, CHRIS MILES, in his individual capacity, and A.J. RENFROE, in his individual capacity, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:08cv551-MHT (WO)

OPINION AND ORDER It is ORDERED that defendants Gordon Ledbetter, Chris Miles and A.J. Renfroe's motion to strike affidavit

testimony (Doc. No. 39) is denied under the conditions set forth below. The Federal Rules of Civil Procedure delineate the general use of a motion to strike: "Upon motion made by a party ... the court may order stricken from any pleading any 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. ... Motions, briefs or memoranda, objections, or affidavits may not be attacked by the motion to strike." Moore's Federal Practice § 2 James Wm. Moore, et al., 12.37[2] (3d ed. 1999).

Therefore, as an initial matter, the motion to strike must be denied as to all non-pleadings, and, in this case, that would be all documents at issue. v. Hoffman, 188 F.R.D. 651, 653 (M.D. See Lowery Ala. 1999)

(Thompson, J.); Fed. R. Civ. P. 7(a) (a "pleading" is "a complaint and an answer; a reply to a counterclaim

denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party

answer, if a third-party complaint is served."). Nevertheless, summary-judgment in motion, resolving the court the will pending implicitly

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consider the motions to strike as, instead, notices of objections to the testimony described. Norman v.

Southern Guar. Ins. Co., 191 F. Supp. 2d 1321, 1328 (M.D. Ala. 2002) (Thompson, J.); Anderson v. Radisson Hotel Corp., 834 F. Supp. 1364, 1368 n.1 (S.D. Ga. 1993) (Bowen, J.). The court is capable of sifting evidence, as required by the summary-judgment standard, without resort to an exclusionary process, and the court will not allow the summary-judgment stage to degenerate into a battle of motions to strike. DONE, this the 10th day of August, 2009. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE