Tuttamore v. Allred et al

Filing 80

ORDER denying 59 Plaintiff's Motion of Opposition to the Defendants [sic] Motion of Summary Judgement and to Strike the Declaration of Margie Bier in Violation of 28 USC § 1746 and 62 Rebuttal to the Defendants [sic] Motion to Dismiss and a Motion to Strike the Declaration of Margie Bier as a Violation Pursuant to 28 USC 1746, to the extent that they seek to strike the Declarations of Margie Bier (Doc. Nos. 50 -1 & 52 -1). The court will still consider these documents to the ext ent they are responsive to Defendants' Motion for Summary Judgment and Motion to Dismiss, respectively. Plaintiff's 60 Motion to Strike the Declaration of David K. Allred in Violation of 28 USC § 1746 is DENIED, by Magistrate Judge Kathleen M. Tafoya on 12/15/2011.(wjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 11–cv–01522–MSK–KMT

TIMOTHY S. TUTTAMORE,
Plaintiff,
v.
DR. ALLRED,
A. OSAGIE,
ADX WARDEN DAVIS,
M. SMITH, and
UNKNOWN UTILIZATION COMMITTEE MEMBERS, all in their official and individual
capacities,
Defendants

ORDER
This matter is before the court on Plaintiff’s “Motion of Opposition to the Defendants
[sic] Motion of Summary Judgement and to Strike the Declaration of Margie Bier in
Violation of 28 USC § 1746” (Doc. No. 59, filed Oct. 31, 2011), “Motion to Strike the
Declaration of David K. Allred in Violation of 28 USC § 1746” (Doc. No. 60, filed Oct. 31,
2011) and “Rebuttal to the Defendants [sic] Motion to Dismiss and a Motion to Strike the
Declaration of Margie Bier as a Violation Pursuant to 28 USC 1746” (Doc. No. 62, filed Oct. 31,
2011).
Federal Rule of Procedure 12(f) provides that “[t]he court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.

Civ. P. 12(f) (emphasis added). Motions and other papers are not pleadings. See Fed. R. Civ.
Pro. 7. “[T]here is no provision in the Federal Rules of Civil Procedure for motions to strike
motions and memoranda.” Searcy v. Soc. Sec. Admin., 956 F.2d 278, 1992 WL 43490, at *2
(10th Cir. March 2, 1992) (unpublished table opinion). “Only material included in a ‘pleading’
may be the subject of a motion to strike, and courts have been unwilling to construe the term
broadly. Motions, briefs, or memoranda, objections, or 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.
2004) (cited with approval in Searcy, 1992 WL 43490, at *2 ). The Declarations of Margie Bier
(Doc. Nos. 50-1 & 52-1) and David Allred (Doc. No. 54-1) are not pleadings that may be the
subject of a motion to strike.
Therefore, it is
ORDERED that Plaintiff’s “Motion of Opposition to the Defendants [sic] Motion of
Summary Judgement and to Strike the Declaration of Margie Bier in Violation of 28 USC §
1746” (Doc. No. 59) and “Rebuttal to the Defendants [sic] Motion to Dismiss and a Motion to
Strike the Declaration of Margie Bier as a Violation Pursuant to 28 USC 1746” (Doc. No. 62,
filed Oct. 31, 2011) are DENIED to the extent that they seek to strike the Declarations of Margie
Bier (Doc. Nos. 50-1 & 52-1). The court will still consider these documents (Doc. Nos. 59 &
62) to the extent they are responsive to Defendants’ Motion for Summary Judgment and Motion
to Dismiss, respectively.
It is further

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ORDERED that Plaintiff’s “Motion to Strike the Declaration of David K. Allred in
Violation of 28 USC § 1746” (Doc. No. 60) is DENIED.
Dated this 15th day of December, 2011.

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