Lewis v. Eufaula City Board of Education et al

Filing 45

OPINION AND ORDER that defendants Eufaula City Board of Education, Allen N. White, Jim S. Calton, Jr., Louise Conner, Otis Hill, James A. Lockwood, and Barry R. Sadler's motion to strike affidavit testimony 33 is denied under the conditions set in this order. Signed by Honorable Judge Myron H. Thompson on 12/4/2012. (Attachments: # 1 Civil Appeals Checklist)(jg, )

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

CRYSTAL C. LEWIS,
Plaintiff,
v.
EUFAULA CITY BOARD OF,
EDUCATION, et al.,
Defendants.

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CIVIL ACTION NO.
2:11cv1093-MHT
(WO)

OPINION AND ORDER
It is ORDERED that defendants Eufaula City Board of
Education, Allen N. White, Jim S. Calton, Jr., Louise
Conner,
Sadler’s

Otis

Hill,

motion

to

James

A.

strike

Lockwood,

affidavit

and

Barry

testimony

R.

(Doc.

No. 33) is 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.”
Civ. P. 12(f) (emphasis added).

Fed. R.

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

may

not

be

attacked by the motion to strike.” 2 James Wm. Moore, et
al., Moore's Federal Practice § 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
“(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.”).
Nevertheless,
summary-judgment

in
motion,

resolving
the

court

the
will

pending
implicitly

consider the motion to strike as, instead, a notice of
objections

to

the

testimony

2

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 4th day of December, 2012.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE