McKinney v. Dzurenda et al

Filing 172

ORDER denying 153 motion to strike. See attached. The 169 motion for extension of time to file a response to the motion to strike is denied as moot in light of the court's ruling. Signed by Judge Alfred V. Covello on March 27, 2013. (Gentile, N.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WILLIAM J. MCKINNEY,
Plaintiff,
v.
JAMES DZURENDA, ET AL.,
Defendans.

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Civil No. 3:10cv880(AVC)

RULING ON THE DEFENDANTS’ MOTION TO STRIKE
The defendants’ motion to strike two letters and a portion
of the plaintiff’s declaration appended to the plaintiff’s
opposition to summary judgment is denied. Pursuant to Federal
Rule of Civil Procedure 12(f), a court may strike “any
insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter” from a party’s pleading. Such motions are
disfavored. See, e.g., Hathaway Motors, Inc. v. General Motors
Corp., 19 F.R.D. 359, 360 (D. Conn. 1955) (“Motions to strike .
. . are in disfavor”); D’Agostino v. Housing Authority of City
of Waterbury, No. 3:05cv1057 (PCD), 2006 WL 1821355, at *2 (D.
Conn. June 30, 2006) (recognizing that “motions to strike are
generally disfavored”); Wright & Miller, Fed. Practice &
Procedure § 1380 (“[M]otions under Rule 12(f) are viewed with
disfavor by the federal courts and are infrequently granted.”).
“Most importantly, Rule 12(f) allows a court to strike
pleadings only. Declarations and affidavits are not pleadings.”
Ricci v. Destefano, No. 3:04 CV 1109 (JBA), 2006 WL 2666081, at

*1 (D. Conn. Sept. 15, 2006) (internal quotations and citations
omitted). It is inappropriate for a court to strike material
contained in exhibits to motions. Ricci, 2006 WL 2666081, at *1.
See also Monroe v. Board of Ed. of Town of Wolcott, 65 F.R.D.
641, 645 (D. Conn. 1975) (recognizing that “[a] rule 12(f)
motion to strike is not strictly proper in this instance, for
the record of the . . . hearing [attached to opposition to
summary judgment] is not a ‘pleading.’”). Thus, neither the
letters, nor the plaintiff’s declaration in support of the
plaintiff’s opposition to summary judgment, are considered a
“pleading” from which the court may properly strike material
under Rule 12(f).
Even if the court were to construe the exhibits as
“pleadings,” a motion to strike is improper with respect to
summary judgment. “The Federal Rules of Civil Procedure do not
explicitly allow motions to strike in the context of summary
judgment.” Ferraresso v. Town of Granby, 646 F. Supp.2d 296, 301
(D. Conn. 2009). Specifically, “Rule 56, which governs summary
judgment, does not provide a ‘motion to strike’ as a tool in the
summary judgment process.” Ferraresso, 646 F. Supp.2d at 301.
Rather, Rule 56(c) provides a means to object to inadmissible
evidence referenced by the opposing party as follows: “A party
may object that the material cited [by the party’s opponent] to
support or dispute a fact cannot be presented in a form that
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would be admissible in evidence.” Fed. R. Civ. P. 56(c). Federal
Rule 56(c) thus contemplates that the parties will flag for the
court material cited by opposing counsel which is not
admissible, and hence not properly considered on summary
judgment.
The defendants’ motion seeks an order striking two letters
and the plaintiff’s declaration appended to his opposition for
summary judgment. The letters and the declaration are not
“pleadings,” and, therefore, may not be stricken pursuant to
Federal Rule 12(f). Further, because the letters and declaration
were filed in the context of summary judgment, striking them
would be inappropriate. The court is fully aware that is may
only consider admissible evidence with respect to the pending
motion for summary judgment. Accordingly, the motion to strike
is DENIED.
It is so ordered this 27th day of March 2013, at Hartford,
Connecticut.
_______/s/_________________
Alfred V. Covello, U.S.D.J.

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