Allied Portables, LLC et al v. Youmans et al

Filing 81

ORDER denying 71 Defendants, Robin Youmans and Garden St. Portables' Amended Motion to Strike. Signed by Judge Sheri Polster Chappell on 10/14/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ALLIED PORTABLES, LLC and CONNIE
ADAMSON, a Florida limited liability
company
Plaintiffs,
v.

Case No: 2:15-cv-294-FtM-38CM

ROBIN YOUMANS, GARDEN ST.
PORTABLES,
LLC,
WILLIAM
''BILL&QUOT OSWALD, JR. ,
BILLOPRO,
LLC,
LORI
A.
LANGLOIS, DEBRA PALMER and
PALMER
ACCOUNTING
&
BOOKKEEPING SERVICE, INC.,
Defendants.
/
ORDER1
This matter comes before the Court on Defendants, Robin Youmans and Garden
St. Portables' Amended Motion to Strike (Doc. #71) filed on October 7, 2015. The
Plaintiffs filed their expedited Response in Opposition (Doc. #77) on October 13, 2015.
The Motion is now fully briefed and ripe for the Court’s review.
Rule 12(f) provides that “the court may order stricken from any pleading any
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Fed. R. Civ. P. 12(f). In evaluating a motion to strike, the court must treat all well pleaded

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facts as admitted and cannot consider matters beyond the pleadings. Microsoft Corp. v.
Jesse’s Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D. Fla. 2002). A motion to
strike will usually be denied unless the allegations have no possible relation to the
controversy and may cause prejudice to one of the parties. Harvey, 2005 WL 1421170
(citing Scelta v. Delicatessen Support Services, Inc., 57 F. Supp. 2d 1327, 1347 (M.D.
Fla. 1997).
Defendants move to strike Michelle Foley as a witness, her affidavit and the
affidavits of Sandi-Jo Gertz and the supplemental affidavit of John Noble. As grounds to
strike Folley’s testimony, and the affidavits, Defendants cite to the M.D. Fla. Local Rule
4.06(b) and Gulf Coast Commercial Corp. v. Gordon River Hotel Associates, No.
2:05CV564-FTM-33SPC, 2006 WL 1382072, at *2 (M.D. Fla. May 18, 2006).
The Local Rule reads as follows:
All hearings scheduled on applications for a preliminary
injunction will be limited in the usual course to argument of
counsel unless the Court grants express leave to the contrary
in advance of the hearing pursuant to Rule 43(e) Fed. R. Civ.
P. In order to develop a record and the positions of the parties
in advance of the hearing, the following procedure shall apply:
(1) The party applying for the preliminary injunction shall fully
comply with the procedural requirements of Rule 4.05(b)(1)
through (b)(5) of these rules pertaining to temporary
restraining orders.
(2) Service of all papers and affidavits upon which the moving
party intends to rely must be served with the motion (Rule
6(c), Fed.R.Civ.P.).
(3) The party or parties opposing the application must file with
the Clerk's Office, and deliver to the moving party, all counter
or opposing affidavits, and a responsive brief, not later than at
least seven (7) days before the hearing (Rule 6(c),
Fed.R.Civ.P.).

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(4) Lengthy briefs, affidavits and other papers are
counterproductive and should be avoided. If the parties desire
additional time to prepare, and so stipulate in writing, the
scheduled hearing may be postponed and the temporary
restraining order (if one has been issued) will be extended as
provided in Rule 65(b), Fed.R.Civ.P. In the event the hearing
is postponed, any additional papers must be filed in advance
of the rescheduled hearing according to the time periods
specified in paragraphs (2) and (3) above (as required by Rule
6(d), Fed.R.Civ.P.).
FL R USDCTMD Rule 4.06(b).
Rule 4.06(b)(2) was designed to prevent the party moving for preliminary injunction
from subjecting the non-moving party to a constant barrage of affidavits and other papers,
making it nearly impossible for the non-moving part to meaningfully respond and defend.
Gulf Coast, 2006 WL 1382072, at *2. Rule 4.06(b) also pertains to establishing a record
before the Court.
The language of Rule 4.06(b), reads in pertinent part: “[a]ll hearings scheduled on
applications for a preliminary injunction will be limited in the usual course to argument of
counsel unless the Court grants express leave to the contrary in advance of the hearing.
. . .” (emphasis added). In this instance, the Court expressly directed the Parties to inform
the Court of any witnesses or other evidentiary matters they intended to present at the
hearing. (Doc. #40). This direction was given after the Motion for Preliminary injunction
was filed. Therefore, all Parties concerned knew that evidence would be presented and
potential witnesses could testify at the evidentiary hearing that were not originally filed as
attachments to the Motion for Preliminary Injunction. As such, the testimony of Foley and
the affidavits at issue in this Motion do not violate Rule 4.06(b)(2).
Defendants also rely on Gulf Coast Commercial Corp. v. Gordon River Hotel
Associates, as grounds to strike the witness Foley and the affidavits of Foley, Gertz, and

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Noble. 2006 WL 1382072, at *2. In Gulf Coast, the Court granted in part and denied in
part defendant’s motion to strike affidavits and evidence presented by plaintiff in support
of its motion for a preliminary injunction. The Court struck evidence that was filed within
five (5) days of the hearing on the preliminary injunction, but allowed evidence filed before
the five (5) day limitation in M.D. Fla. Local Rule 4.06(b) to be used at the preliminary
injunction hearing.2 The Court noted that under the M.D. Fla. Local Rule 4.06(b), that
“[s]ervice of all papers and affidavits upon which the moving party intends to rely must be
made at least five (5) full days prior to the [preliminary injunction] hearing.” Gulf Coast,
2006 WL 1382072, at *2. Unlike the instant case, the Court in Gulf Coast did not hold an
evidentiary hearing allowing witnesses and evidence to be presented but instead held a
hearing based upon the motions and attached affidavits only. Thus, Gulf Coast is easily
differentiated from the instant case.
In this case, Plaintiffs informed the Court and Counsel that Michelle Foley would
be called as a witness on August 31, 2015. Foley’s affidavit was filed on September 4,
2015, (Doc. #62) with a supplemental affidavit being filed on September 21, 2015. (Doc.
#64). While Foley was originally scheduled to testify at the hearing on September 2, 2015,
the hearing was continued until October 15, 2015. Thus, the Defendants have had ample
notice that Foley would be testifying and were given time to prepare to cross examine her
testimony and provide evidence to refute her affidavit. As such, no prejudice will result to
Defendants by Foley’s testimony or affidavit.
The affidavit of Sandi-Jo Gertz (Doc. #63) was filed on September 10, 2015. There
has been more than a month for the Defendants to prepare for Gertz testimony or respond

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M.D. Fla. Local Rule 4.06(b) was changed on December 1, 2009, to read as noted in this Order. Supra at
p. 2.

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to her affidavit. The Affidavit of John Noble was originally filed with the initial Motion for
a Preliminary Injunction (Doc. #10) on May 25, 2015. The supplemental affidavit of John
Noble (Doc. #69) was filed on October 2, 2015. The Plaintiffs have known about Noble’s
testimony for nearly five (5) months and have had two (2) weeks to prepare for any
information included in Noble’s supplemental affidavit. Therefore, the Defendants will not
be prejudiced by the affidavits of Gertz or Nobel.
Because the Court directed the Parties to file their witness lists and evidence with
the Court prior to the hearing, the Court does not find good cause to strike Foley as a
witness nor the affidavits of Foley, Gertz, and/or Noble.
Accordingly, it is now
ORDERED:
Defendants, Robin Youmans and Garden St. Portables' Amended Motion to Strike
(Doc. #71) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 14th day of October, 2015.

Copies: All Parties of Record

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