Norris v. GKN Westland Aerospace, Inc.
OPINION AND ORDER that defendant GKN Westland Aerospace, Inc.'s 37 Motion to Strike and plaintiff Jerome Norris's 42 Motion to Strike are denied as further set out in the opinion and order. Signed by Honorable Judge Myron H. Thompson on 2/5/2013. (dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JEROME P. NORRIS,
GKN WESTLAND AEROSPACE,
CIVIL ACTION NO.
OPINION AND ORDER
The cause is before the court on motions to strike
(Westland) and plaintiff Jerome Norris.
Westland’s Motion to Strike
Westland asks the court to strike certain evidence
from the record on summary judgment.
The Federal Rules
of Civil Procedure restrict the use of a motion to strike
government’s affidavits and evidence.
See Lowery v.
Hoffman, 188 F.R.D. 651, 653 (M.D. Ala 1999) (Thompson,
J.); Fed. R. Civ. P. 12(f).
The correct approach is to object to an opposing
party’s factual assertion on the ground that it “cannot
be presented in a form that would be admissible in
Fed. R. Civ. P. 56(c)(2).
The court will
therefore construe Westland’s motion to strike as notice
of objections in accordance with Federal Rule of Civil
disposition of Westland’s motion for summary judgment,
they will be discussed in this court’s summary judgment
Norris’s Motion to Strike
Norris asks the court to strike certain portions of
Westland’s reply brief in support of summary judgment.
He contends that Westland raised a new argument in its
reply brief for the first time and that the argument
should be stricken as beyond the permissible scope of a
Again, motions to strike are properly filed
in reference to pleadings, not briefs.
Fed. R. Civ. P.
However, the court will construe this motion as
a notice of objection to the scope of Westland’s reply.
At issue is Westland’s assertion that, because its
supervisors fired Norris out of a “good faith belief” in
his poor workmanship, it met its burden of offering a
legitimate, non-discriminatory, non-retaliatory reason
for firing him.
The court does not agree this is a new
judgment on the ground that it had a legitimate reason
for firing Norris which he had failed to rebut.
workmanship as that reason and offered evidence tending
In response, Norris disputed his responsibility
for several of the errors attributed to him.
By way of
reply, Westland pointed out that it need only show its
responsible for the errors.
This was an entirely proper
use of the reply brief.
The court notes too that Westland’s opening brief
quoted Clark v. Coats & Clark, Inc., 990 F.2d 127, 1228
performance is unsatisfactory constitutes a legitimate
nondiscriminatory reason for termination.”
(Doc. No. 27) at 20.
Norris contends that this quotation
is insufficient because the employer in the Clark case
did not rely on the “good faith belief doctrine” and
instead argued the employee’s workmanship was truly of
Mot. Strike (Doc. No. 42) at n.1.
quotation, however, speaks for itself.
Its use in the
opening brief should have put Norris on notice that
pointing out inaccuracies in Westland’s proffered logic
may not meet its burden of revealing that logic as
If he felt the need to respond to this argument
more fully following its presentation in the reply brief,
he should have asked leave of the court to file a surreply.
His failure to do so is not fatal to his claim,
Westland Aerospace, Inc.’s motion to strike (Doc. No. 37)
and plaintiff Jerome Norris’s motion to strike (Doc. No.
42) are denied.
DONE, this the 5th day of February, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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