Dunn et al v. Thomas et al

Filing 883

PHASE 2 ORDER ON MOTIONS TO STRIKE: It is ORDERED that defendants' motions to strike (doc. nos. 806 & 875 ) briefs filed by plaintiffs are denied under the conditions set forth. Signed by Honorable Judge Myron H. Thompson on 10/20/2016. (kh, )

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

JOSHUA DUNN, et al.,
Plaintiffs,
v.
JEFFERSON S. DUNN, in his
official capacity as
Commissioner of
the Alabama Department of
Corrections, et al.,
Defendants.

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CIVIL ACTION NO.
2:14cv601-MHT
(WO)

PHASE 2 ORDER ON MOTIONS TO STRIKE
It is ORDERED that defendants’ motions to strike
(doc. nos. 806 & 875) briefs filed by plaintiffs are
denied under the conditions set forth below.
Federal
delineates

Rule
the

of

Civil

general

use

Procedure
of

a

12(f),

motion

to

which
strike,

provides as follows: “Upon motion made by a party ...
the

court

may

insufficient

order

defense

stricken

from

or

redundant,

any

impertinent, or scandalous matter.”

any

pleading

any

immaterial,

(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.

...

Motion, briefs or memoranda, objections,

or affidavits may not be attacked by the motion to
strike.”

2

Moore’s

Fed.

Prac.

§ 12.37[2]

(3d

ed.

1999).
Therefore, as an initial matter, these motions to
strike will be denied as to all non-pleadings--that is,
all of the documents at issue in these motions.

See

Lowery v. Hoffman, 188 F.R.D. 651 (M.D. Ala. 1999);
Fed.

R.

Civ.

P.

7(a)

(defining

a

“pleading”).

Defendants’ third motion to strike (doc. no. 809) and
the sole pending issue in plaintiffs’ motion to strike
(doc. no. 838) will remain before the court, as they
present

related

issues

and

will

be

resolved

in

a

forthcoming opinion.
Nevertheless,

in

resolving

the

pending

summary-judgment and class-certification motions, the
court will consider the denied motions to strike as,
instead, notices of objections.

See Norman v. S. Guar.

Ins. Co., 191 F. Supp. 2d 1321, 1328 (M.D. Ala. 2002)

2

(Thompson, J.); Anderson v. Radisson Hotel Corp., 834
F. Supp. 1364, 1368 n.1 (S.D. Ga. 1993) (Bowen, J.).
The

court

required

is

capable

by

the

class-certification

of

sifting

evidence,

summary-judgment

standards,

without

resort

as
and

to

an

exclusionary process.

The court will not allow the

summary-judgment

class-certification

and

stage

degenerate into a battle of motions to strike.

to
The

parties are not to file additional motions to strike in
this case unless they comply with the letter of Rule
12(f) and pertain exclusively to “pleadings” within the
meaning

of

Rule

7(a);

any

non-compliant

motions

to

strike will be summarily denied.
DONE, this the 20th day of October, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE