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)

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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. ) ) ) ) ) ) ) ) ) ) ) ) ) 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. 2 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 3 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 4

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