Johnson et al v. State Farm

Filing 65

Order re: 64 MOTION to Strike filed by State Farm, no response to the motion to strike need to be filed and briefing is closed. Signed by Magistrate Judge Katherine P. Nelson on 7/26/2013. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARVETTE JOHNSON and DEBBIE
JOHNSON,
Plaintiffs,
v.
STATE FARM,
Defendant.

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CA 12-00534-N

ORDER
In this case, proceeding before the undersigned United States Magistrate
Judge for all purposes, including trial, pursuant to 28 U.S.C. § 636(c) (see Docs. 8,
9), Defendant State Farm Insurance’s motion for summary judgment (Doc. 43)
became ripe yesterday, July 25, 2013 (see Doc. 53).
Consistent with the Court’s July 17, 2013 Order (Doc. 59), State Farm, in its
reply (Doc. 61), filed yesterday, addressed the plaintiffs’ motion to strike the report
of Joel Wehrman, P.E. (Doc. 58). And, simultaneous with the filing of the reply,
State Farm also filed its own motion to strike (Doc. 64) certain evidence contained
in the plaintiffs’ response (Doc. 55).
At summary judgment, “[i]t is the function of a court, with or without a
motion to strike, to review carefully both statements of material facts and
statements of genuine issues and the headings contained therein and to eliminate
from consideration any argument, conclusions, and assertions unsupported by the
documented evidence of record offered in support of the statement.”

Rangel v.

Schmidt, Cause No. 2:09–CV–071, 2011 WL 5570691, at *4 (N.D. Ind. Nov. 16,
2011) (denying motion to strike certain paragraphs in a plaintiff’s “Clarified
Affidavit” and noting, “Motions to strike are heavily disfavored, and usually only
granted in circumstances where the contested evidence causes prejudice to the
moving party. This Court can give Rangel’s Clarified Affidavit the credit to which it
is due, without the need to employ a motion to strike. The Court is able to sift
through the evidence and to consider each piece under the applicable federal rules .
. . .” (citations omitted)).
Accordingly, the Court will exercise its discretion to consider State Farm’s
objections in the Court’s consideration of the summary judgment motion. See, e.g.,
King v. Alabama Dep’t of Pub. Health, Civil Action No. 09–0503–WS–C, 2010 WL
3522381, at *1 n.1 (S.D. Ala. Sept. 2, 2010) (“Rather than becoming mired in
ancillary evidentiary objections at the outset, the Court will consider those Motions
to Strike on an ongoing basis herein, and only to the extent necessary to resolve the
pending Motion for Summary Judgment.”).
As such, no response to State Farm’s motion to strike need be filed, and
briefing is CLOSED.
DONE and ORDERED this the 26th day of July, 2013.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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