Norris v. GKN Westland Aerospace, Inc.

Filing 50

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,

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Plaintiff,
v.
GKN WESTLAND AEROSPACE,
INC.,
Defendant.

CIVIL ACTION NO.
2:11cv861-MHT
(WO)

OPINION AND ORDER
The cause is before the court on motions to strike
filed

by

defendant

GKN

Westland

Aerospace,

Inc.

(Westland) and plaintiff Jerome Norris.

I.

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
to

the

pleadings.

appropriate

vehicle

A

motion

for

a

to

strike

general

government’s affidavits and evidence.

is

attack

not
on

an
the

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
evidence.”

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
Procedure

56.

Where

those

objections

bear

on

the

disposition of Westland’s motion for summary judgment,
they will be discussed in this court’s summary judgment
opinion.

II.

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

2

reply brief.

Again, motions to strike are properly filed

in reference to pleadings, not briefs.
12(f).

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.
argument.

The court does not agree this is a new

Westland’s

opening

brief

sought

summary

judgment on the ground that it had a legitimate reason
for firing Norris which he had failed to rebut.
specifically,

it

identified

Norris’s

More

poor-quality

workmanship as that reason and offered evidence tending
to

show

reason.

that

its

supervisors

acted

because

of

that

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
supervisors

held

a

good-faith

3

belief

that

he

was

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
(11th

Cir.

employer’s

1993),
good

for

faith

the

proposition

belief

that

an

that,

“An

employee’s

performance is unsatisfactory constitutes a legitimate
nondiscriminatory reason for termination.”
(Doc. No. 27) at 20.

Def. Br.

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
poor quality.

Mot. Strike (Doc. No. 42) at n.1.

quotation, however, speaks for itself.

The

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
pretext.

If he felt the need to respond to this argument

more fully following its presentation in the reply brief,

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he should have asked leave of the court to file a surreply.
however,

His failure to do so is not fatal to his claim,
as

explained

in

the

accompanying

summary-

judgment order.
***
Accordingly,

it

is

ORDERED

that

defendant

GKN

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