Todd v. City of LaFayette, Alabama et al

Filing 94

OPINION AND ORDER: it is ORDERED that dfts' 70 & 79 Motions to strike are denied. Signed by Honorable Judge Myron H. Thompson on 3/12/2013. (wcl, )

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

MERRILL TODD,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF LAFAYETTE, et al., )
)
Defendants.
)

CIVIL ACTION NO.
3:12cv589-MHT
(WO)

OPINION AND ORDER
The cause is before the court on the defendants’
motions to strike.
The

defendants

ask

the

court

to

strike

certain

evidentiary material from the record on summary judgment.
The Federal Rules of Civil Procedure, however, restrict
the use of a motion to strike to the pleadings.

A motion

to strike is not an appropriate vehicle for a general
attack on the 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); see also 2 James
Wm. Moore, et al., Moore’s Federal Practice § 12.37[2]
(3d ed. 1999) (“Only material included in a ‘pleading’

may be subject of a motion to strike .... Motions, briefs
or

memoranda,

objections,

or

affidavits

may

not

be

attacked by the motion to strike.”).
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

construe the motions to strike as notice of objections in
accordance

with

Federal

Rule

of

Civil

Procedure

56.

Where those objections bear on the disposition of the
defendants’ motion for summary judgment, they will be
discussed in this court’s summary-judgment opinion.
***
Accordingly, it is ORDERED that defendants’ motions
to strike (Doc. Nos. 70 & 79) are denied.
DONE, this the 12th day of March, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE