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, )

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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. ) ) ) ) ) ) ) ) ) ) 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

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