KEATON v. HANNUM et al
Filing
144
ORDER entered regarding Zook's 102 Motion to Strike. The Court ORDERS that the Clerk's office place Docket 99 under seal. Keaton is ORDERED to file an amended response within fourteen (14) days of this Order that omits the foregoing statements. No other substantive changes should be made to Keaton's Response [Dkt. 99]. See Order for additional information c/m. Signed by Magistrate Judge Mark J. Dinsmore on 4/29/2013. (SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARK KEATON,
Plaintiff,
vs.
DAVE HANNUM,
LESLIE SLONE,
CHRISTINE ZOOK,
REBA GARDNER,
JACKIE DAKICH,
Defendants.
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No. 1:12-cv-00641-SEB-MJD
ORDER GRANTING MOTION TO STRIKE PORTIONS OF KEATON’S RESPONSE
TO DEFENDANT ZOOK’S MOTION FOR PROTECTIVE ORDER [DKT. 102]
On March 1, 2013, Defendant Zook filed a Motion to Strike Portions of Keaton’s
Response to Defendant Zook’s Motion for Protective Order [Dkt. 102].
Zook argues that
portions of Keaton’s Response to Defendant Zook’s Motion for Protective Order [Dkt. 99] are
“scandalous and offered by Keaton only as an attempt to embarrass and harass Zook.” [Dkt. 102
at ¶ 1.] Plaintiff Keaton filed no response or objection to Zook’s Motion to Strike.
Zook seeks to strike four portions of Keaton’s Response:
Page 3, lines 2-6, beginning “Put simply . . .” and ending “. . . their relationship.”
Page 3, lines 11-17, beginning “Keaton believes . . .” and ending “. . . own purposes.”
Page 5, lines 4-5, beginning “(who . . .” and ending “. . . persons)”.
Page 5, lines 15-20, beginning “And to the extent . . .” and ending “the truth.”
[Dkt. 102 at ¶ 2.] Federal Rule of Civil Procedure 12(f) permits a court to “strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Although Rule 12(f) “does not explicitly authorize a motion to strike documents other
than pleadings, courts routinely entertain such motions.”
City of Sterling Heights Gen.
Employees’ Retirement Sys. v. Hospira, Inc., No. 11-c-8332, 2013 WL 566805, at *11 (N.D. Ill.
Feb. 13, 2013) (citing Ind. Ins. Co. v. Westfield Ins. Co., 10 C 2660, 2010 WL 3404971, at *3
(N.D. Ill. Aug.26, 2010) (denying motion to strike portions of response to motion to dismiss);
Unytite, Inc. v. Lohr Structural Fasteners, Inc., 91 C 2849, 1992 WL 34143, at *6 (N.D. Ill. Feb.
13, 1992) (granting motion to strike affidavit and exhibit in plaintiff's response to motion to
dismiss); Hanover Ins. Group v. Singles Roofing Co., 10 C 611, 2012 WL 2368328, at *9 (N.D.
Ill. June 21, 2012) (granting motion to strike unauthorized and untimely supplemental response
brief to preliminary injunction motion)). “This authority comes from the Court's inherent power
to strike impermissible filings.” City of Sterling Heights Gen. Employees’ Retirement Sys., 2013
WL 566805, at *11 (citing Cf. Cleveland v. Porca Co., 38 F.3d 289, 297 (7th Cir.1994)
(upholding district court's discretion to strike filing not provided for by the Local Rules); see also
In re Bear Stearns Cos., Inc. Secs., Derivative & ERISA Litig., 763 F. Supp. 2d 423, 581–82
(S.D.N.Y.2011) (noting the district court's “inherent authority to strike any filed paper which it
determines to be abusive or otherwise improper under the circumstances” in deciding motion to
strike exhibits from a motion to dismiss)). As a general rule, motions to strike are disfavored.
Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1295 (7th Cir. 1989). The burden on a
motion to strike is upon the moving party. Talbot v. Robert Matthews Distrib. Co., 961 F.2d
654, 664 (7th Cir. 1992).
Here, Zook seeks to cite portions of Keaton’s Response that do not relate directly to the
matter at hand – whether the photographs and blog screenshots at issue should be subject to a
protective order such that Keaton can view these documents, but not obtain copies of them.
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Instead, the four statements including within Keaton’s Response describe the explicit
photographs and how the disclosure of the photographs may or may not embarrass Zook.
Because it was unnecessary for Keaton to include the statements identified above with respect to
the merits of Zook’s Motion for Protective Order, the statements are both immaterial and have
the potential to embarrass Zook.
Consequently, the Court GRANTS Zook’s Motion and
STRIKES the following paragraphs from Keaton’s Response [Dkt. 99]:
Page 3, lines 2-6, beginning “Put simply . . .” and ending “. . . their relationship.”
Page 3, lines 11-17, beginning “Keaton believes . . .” and ending “. . . own purposes.”
Page 5, lines 4-5, beginning “(who . . .” and ending “. . . persons)”.
Page 5, lines 15-20, beginning “And to the extent . . .” and ending “the truth.”
The Court ORDERS that the Clerk’s office place Docket 99 under seal. Keaton is
ORDERED to file an amended response within fourteen (14) days of this Order that omits the
foregoing statements. No other substantive changes should be made to Keaton’s Response [Dkt.
99].
Date:
04/29/2013
Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana
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Distribution:
David B. Hughes
INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
dbhughes11@att.net
MARK KEATON
PO BOX 11208
Ft. Wayne, IN 46856
David L. Ferguson
FERGUSON & FERGUSON
dlf@ferglaw.com
James R. A. Dawson
TAFT STETTINIUS & HOLLISTER LLP
jdawson@taftlaw.com
Kate E. Shelby
INDIANA ATTORNEY GENERAL
kate.shelby@atg.in.gov
Daniel Mark Witte
TRAVELERS STAFF COUNSEL OFFICE
dwitte@travelers.com
Don R. Hostetler
OFFICE OF THE ATTORNEY GENERAL
donald.hostetler@atg.in.gov
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