USA v. 6941 Morrison Drive, Denver, Colorado

Filing 44

ORDER granting 34 Plaintiff United States' Motion to Strike Claimant Maes's Second and Third Defenses, by Magistrate Judge Michael J. Watanabe on 11/30/2012.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01086-PAB-MJW
UNITED STATES OF AMERICA,
Plaintiff(s),
v.
6941 MORRISON DRIVE, DENVER, COLORADO,
Defendant(s).

ORDER REGARDING
PLAINTIFF UNITED STATES’ MOTION TO STRIKE CLAIMANT MAES’S SECOND
AND THIRD DEFENSES (DOCKET NO. 34)

Entered by Magistrate Judge Michael J. Watanabe

This matter is before the court on Plaintiff United States’ Motion to Strike
Claimant Maes’s Second and Third Defenses (docket no. 34). The court has reviewed
the subject motion (docket no. 34), the response (docket no. 41), and the reply (docket
no. 43). In addition, the court has taken judicial notice of the court’s file and has
considered applicable Federal Rules of Civil Procedure and case law. The court now
being fully informed makes the following findings of fact, conclusions of law, and order
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

2.

That venue is proper in the state and District of Colorado;

2
3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That on April 24, 2012, the Plaintiff United States filed its Verified
Complaint for Forfeiture In Rem (docket no. 1);

5.

That a notice of Verified Complaint for Forfeiture was sent to
Claimant Maes on May 1, 2012 (docket nos. 10 and 11);

6.

That on September 13, 2012, Claimant Maes filed his Answer to
Plaintiff United States’ Verified Complaint for Forfeiture In Rem
(docket no. 33). In his Answer, Claimant Maes asserted six
affirmative defenses;

7.

That under Fed. R. Civ. P. 12(f), the court may order stricken from
any pleading “an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The
purpose of Rule 12(f) is to save the time and money that would be
spent litigating issues that will not affect the outcome of the case.”
United States v. Smuggler-Durant Mining Corp., 823 F. Supp. 873,
875 (D. Colo. 1993). See Stubbs v. McDonald’s Corp., 224 F.R.D.
668, 676-77 (D. Kan. 1994) (stating that Rule 12(f)’s purpose “is to
minimize delay, prejudice, and confusion by narrowing the issues
for discovery and trial” and striking the allegations at issue as
immaterial, impertinent, and prejudicial).

As such, allegations “so unrelated to the plaintiff’s claims as to be

3
unworthy of any consideration” should be stricken. United States v.
Shell Oil Co., 605 F. Supp. 1064, 1085 (D. Colo. 1985) (quoting
EEOC v. Ford Motor Co., 529 F. Supp. 643, 644 (D. Colo. 1982)).
Moreover, “[i]n deciding whether to [grant] a Rule 12(f) motion on
the ground that the matter is impertinent and immaterial, it is settled
that the motion will be denied, unless it can be shown that no
evidence in support of the allegation would be admissible. . . . Only
allegations so unrelated to plaintiff’s claims as to be unworthy of
any consideration should be stricken. Id. (citations and quotations
omitted).

Accordingly, courts are vested with the discretion to grant motions
to strike under Rule 12(f) “when the allegations have no bearing on
the controversy and the movant can show that he has been
prejudiced.” Sierra Club v. Young Life Campaign, Inc., 176 F.
Supp.2d 1070, 1086 (D. Colo. 2001) (internal citations omitted).

Striking a defense is a “severe remedy,” but the purpose is to
promote efficiency and avoid “litigating issues that will not affect the
outcome of the case.” McPherson v. Bachus & Schanker, LLC, No.
10-cv-01768-CMA-KMT, 2011 WL 2415003, at *2 (D. Colo. June
10, 2011) (citations omitted). A defense is insufficient if it cannot
succeed under any “set of circumstances.” S.E.C. v. Nacchio, 438

4
F. Supp.2d 1266, 1287 (D. Colo. 2006). Indeed, “a defense that
might confuse the issues in the case and would not, under the facts
alleged, constitute a valid defense to the action can and should be
deleted.” Waste Management Holdings, Inc. v. Gilmore, 252 F.3d
316, 347 (4th Cir. 2001) (citing 5A A. Charles Alan Wright & Arthur
R. Miller, Federal Practice & Procedure § 1381, 665 (2nd ed. 1990));
8.

That Claimant Maes’s Second Defense is legally insufficient
because the Controlled Substances Act (“CSA”) is not a medical
treatment, and there is no fundamental right to obtain narcotics.
See United States v. 11843 Hannibal Street, No. 12-cv-01433REB-MJW, 2012 WL 5392497 (D. Colo. Nov. 5, 2012);

9.

That Claimant Maes’s Third Defense [First Amendment Defense] is
irrelevant to the conduct alleged, the consumption of marijuana is
not information, and the First Amendment does not protect criminal
conduct in violation of a valid statute. See id.;

10.

That Claimant Maes has failed to demonstrate to this court how his
Second and Third Defenses are applicable to the conduct alleged in
the Plaintiff United States’ Verified Complaint. The Verified
Complaint alleges that the Claimant Maes used 6941 Morrison
Drive, Denver, Colorado, to grow marijuana in violation of the CSA
and therefore subject to forfeiture pursuant to 21 U.S.C. §
881(a)(7).

5
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Plaintiff United States’ Motion to Strike Claimant Maes’s
Second and Third Defenses (docket no. 34) is GRANTED. The
Claimant Maes’s Second and Third Defenses are STRICKEN; and

2.

That each party shall pay their own attorney fees and costs for this
motion.

Done this 30th day of November 2012.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE