Fernandez v. Rodrigues et al
Filing
34
ORDER denying 27 Motion to Strike. Signed by Magistrate Judge John J. O'Sullivan on 6/27/2011. (mkr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 10-62269-CIV-O’SULLIVAN
[CONSENT]
NESTOR FERNANDEZ,
Plaintiff,
v.
THE ESTATE OF ARTURO GATTI,
et al.,
Defendants.
________________________________/
ORDER
THIS MATTER came before the Court on the Defendants’, the Estate of Arturo
Gatti and Amanda Rodrigues, as Sole Liquidator of the Estate of Arturo Gatti Motion to
Strike Punitive Damage Claims, Allegations and Wherefore Clause References &
Paragraph 10 of the Complaint and Memorandum of Law (DE# 27, 6/1/11) (hereinafter
“Motion to Strike”). Having reviewed the applicable filings and the law, it is
ORDERED AND ADJUDGED that Motion to Strike (DE# 27, 6/1/11) is DENIED
for the reasons set forth below. As the Motion to Strike notes, the plaintiff told the
defendants that he would be withdrawing his punitive damages claims.1 See Motion to
Strike (DE# 27 at 4). Therefore, the portion of the defendants’ motion that concerns
punitive damages is wholly unnecessary.2
The defendants also seek to strike paragraph 10 of the Complaint (DE# 1,
11/22/10). Paragraph 10 is a brief description of Arturo Gatti’s boxing career and states
1
On June 14, 2011, the plaintiff withdrew his punitive damages claims. See
Plaintiff’s Notice of Withdrawal of Claims for Punitive Damages (DE# 29, 6/14/11).
2
In consideration of the Court’s limited judicial resources, the parties should
refrain from filing unnecessary motions.
in its entirety:
10. ARTURO GATTI was an accomplished professional boxer and started
his career in 1991. His career spanned forty-four fights, thirty-eight of
which he won, twenty-nine of those by knock-out. In 1994, he became the
United States Boxing Association’s junior lightweight champion. In 1995,
he became the International Boxing Federation’s super featherweight
world champion. Between 1996 and 1998, he competed in three matches
that were honored by Ring Magazine as Fights of the Year. In 2004, he
earned the World Boxing Council’s super welterweight crown. Throughout
his career ARTURO GATTI has fought prominent world champions,
including Oscar de la Hoya and Floyd Mayweather, Jr. ARTURO GATTI
announced his retirement from professional boxing in July 2007.
Complaint (DE# 1 at ¶10, 11/22/10). The defendants argue that paragraph 10 should
be stricken as “totally immaterial, impertinent, completely unnecessary and surplus, is
only intended to prejudice, and it is not consistent with proper pleading practice in this
Court.” Motion to Strike (DE# 27 at 3-4, 6/1/11). The plaintiff responds that “[t]he
allegations in paragraph 10 are material to Plaintiff’s action. Mr. Gatti’s status and
experience as a professional boxer support Plaintiff’s allegations that he suffered such
severe injuries as a result of being struck by the intoxicated.” Plaintiff’s Response in
Opposition to Defendant’s Motion to Strike (DE# 30 at 2, 6/14/11).
Rule 12(f) of the Federal Rules of Civil Procedure 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). The Court finds that paragraph 10 of the
Complaint is not “immaterial, impertinent, completely unnecessary [or] surplus” as
alleged by the defendants. Accordingly, the defendants’ Motion to Strike as it pertains
to paragraph 10 is DENIED. “A motion to strike is a drastic remedy[,] which is
disfavored by the courts and will usually be denied unless the allegations have no
possible relation to the controversy and may cause prejudice to one of the parties.”
2
Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F. Supp. 2d 1345, 1348 (M.D. Fla.
2002) (alteration in original) (internal quotations omitted). To the extent that the
defendants are concerned about prejudice, they are free to make this argument in a
motion in limine at the appropriate time.
DONE AND ORDERED in Chambers at Miami, Florida this 27th day of June,
2011.
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies to:
All counsel of record
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?