Baker v. State of Colorado, et al

Filing 19

ORDER denying 16 Plaintiff's Motion to Strike. Plaintiff shall file a Response to the 14 MOTION to Dismiss on or before 10/3/13. By Magistrate Judge Kristen L. Mix on 9/18/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01334-PAB-KLM
BRANDON BAKER, Rev.,
Plaintiff,
v.
THE STATE OF COLORADO, and
COLORADO ATTORNEY GENERAL,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Strike [Docket No. 16; Filed
August 14, 2013] (the “Motion”). On September 4, 2013, Defendants filed a Response
[#18]. Plaintiff, who proceeds in this matter as a pro se litigant, brings the Motion pursuant
to Fed. R. Civ. P. 12(f). Motion [#16] at 1. He seeks to strike part of Defendants’ pending
Motion to Dismiss [#14]. Id.
As an initial matter, the Court notes that Rule 12(f) only permits the Court to “strike
from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Pleadings, as defined by Rule 7(a), are different from “motions and
other papers.” Pleadings include a complaint, an answer to a complaint, an answer to a
counterclaim designated as a counterclaim, an answer to a counterclaim, a third-party
complaint, an answer to a third-party complaint, and, if court-ordered, a reply to an answer.
Fed. R. Civ. P. 7(a). “[T]here is no provision in the Federal Rules of Civil Procedure for
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motions to strike motions and memoranda.” Searcy v. Soc. Sec. Admin., No. 91-4181,
1992 WL 43490, at *2 (10th Cir. Mar. 2, 1992). See also 2 James Wm. Moore et. al.,
Moore's Federal Practice § 12.37[2] (3d ed. 2004) (“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.”).
The document to which Plaintiff’s Motion is directed is not a “pleading” as defined
by Rule 7(a) of the Federal Rules of Civil Procedure. The Court finds that Plaintiff may
therefore not attack the information provided by Defendants through a motion to strike
pursuant to Rule 12(f). See Trujillo v. Bd. of Educ. of Albuquerque Pub. Schs., 230 F.R.D.
657, 660 (D.N.M. 2005). Accordingly,
IT IS HEREBY ORDERED that the Motion [#16] is DENIED.
IT IS FURTHER ORDERED, sua sponte, that Plaintiff shall file a Response to the
Motion to Dismiss [#14] on or before October 3, 2013.

Dated: September 18, 2013

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