Joseph v. Homeland Security Secretary

Filing 41

ORDER denying 38 Motion to Strike. Signed by Magistrate Judge Jonathan Goodman on 1/30/2012. (eg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 11-21468-CIV-GRAHAM/GOODMAN
MICHAEL JOSEPH,
Plaintiff,
vs.
JANET NAPOLITANO., Secretary,
U.S. Department of Homeland Security,
Defendant.
___________________________________/
ORDER
This matter is before the Court on Defendant’s Motion to Strike Plaintiff’s
Request for Back Pay and Front Pay. [D.E. 38]. Based on the parties’ consent,
U.S. District Judge Donald L. Graham referred this case to the Undersigned for
all pre-trial proceedings. [D.E. 17-1, 18]. The Court has reviewed the motion
and the case-file and is otherwise duly advised in the premises.
Federal Rule of Civil Procedure 12(f) provides that:
Motion to Strike. The court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the
pleading or, if a response is not allowed, within 21 days after being
served with the pleading.
Motions to strike are viewed with disfavor and are infrequently granted
because the arguments raised therein can typically be presented more concisely

and efficiently in other contexts. See Stabilisierungsfonds Fur Wein v. Kaiser
Stuhl Wine Distributors Pty., Ltd., 647 F.2d 200, 201 (D.C. Cir. 1981).
In its motion, the Secretary seeks to strike the Plaintiff’s request for front
pay and back pay because the Plaintiff “has produced no evidence that he even
looked for employment” as required by the applicable law that requires Title VII
plaintiffs to mitigate damages. [DE 38, at 4]. A failure to present evidence to
substantiate a claim is not one of the grounds for striking a pleading enumerated
in Rule 12(f). Rather, such arguments are to be raised in a motion for summary
judgment under Rule 56. In this case, however, the Secretary has already filed a
motion for summary judgment, which is currently pending and is not yet ripe for
adjudication.

[DE 37].

To permit this motion to proceed would therefore

circumvent the local rules’ prohibition on filing multiple motions for summary
judgment. See Local Rule, S.D. Fla. 7.1(c)(2); Jeffrey O. v. City of Boca Raton,
511 F. Supp. 2d 1328, 1338 (S.D. Fla. 2007) (“the local rules expressly prohibit
the filing of multiple motions for summary judgment”).
In addition, the motion to strike does not indicate that the Secretary
engaged in a reasonable pre-filing conference with the Plaintiff, which is also a
basis for denying the requested relief.

See Local Rule, S.D. Fla. 7.1(a)(3)

(“Failure to comply with the requirements of this Local Rule [by making
reasonable efforts to confer with all parties who may be affected by the relief
sought in the motion] may be cause for the Court to grant or deny the
motion . . .”).

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Defendant’s motion to strike [DE 38] is denied without prejudice to the
Defendant’s ability to raise these arguments at trial.
DONE AND ORDERED in Chambers, at Miami, Florida, January 30,
2012.

Copies furnished to:
All Counsel of Record

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