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)

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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

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