Berry et al v. Loancity et al
ORDER denying 106 Motion to Strike. Signed by Magistrate Judge Scott D. Johnson on 1/6/2021. (ELW)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DARRELL BERRY, et al.
LOANCITY, et al.
Before the Court is Plaintiffs’ Motion to Strike (R. Doc. 106), which seeks to strike “the
2005 LoanCity Note and Mortgage filed by Defendants in Doc 5, Exhibit A & B and Doc 84
Exhibit A & B on the grounds that said note and mortgage are based on fraud and cannot possibly
be a refinance of the original note and mortgage by Equifirst.” (R. Doc. 106 at 1). This Motion is
opposed by Defendants. (R. Docs. 111 and 114).
In their Motion to Strike, Plaintiffs argue for striking the LoanCity Note and Mortgage on
the basis that the “Original” note and mortgage from Equifirst “were cancelled, not transferred,
sold or assigned,” and that “[n]either Defendant can attest to this contract being authentic because
neither Defendant executed the contract or have [sic] personal knowledge of its accuracy” and
“have not attested to these documents being true and authentic.”1 (R. Doc. 106 at 1). Plaintiffs
seek to strike the document pursuant to Rule 12(f) of the Federal Rules of Civil Procedure as well
as Rule 964 of the Louisiana Code of Civil Procedure.
Under Rule 12(f) of the Federal Rules of Civil Procedure, a court “may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
While there are multiple named Defendants in this case, Wells Fargo Bank, N.A. generally has been proceeding on
its own, while the remaining Defendants, other than LoanCity, generally have been proceeding together, filing joint
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Similarly, Rule 964 of the Louisiana Code of Civil Procedure provides that a “court on motion of
a party or on its own motion may at any time and after a hearing order stricken from any pleading
any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous
“Striking a pleading is generally disfavored, and it is ‘a drastic remedy to be resorted to
only when required for the purposes of justice [and] should be granted only when the pleading to
be stricken has no possible relation to the controversy’.” Spoon v. Bayou Bridge Pipeline, LLC,
335 F.R.D. 468, 470 (M.D. La. 2020), quoting Augustus v. Bd. of Pub. Instruction of Escambia
County, Fla., 306 F.2d 862, 868 (5th Cir. 1962); see also Becnel v. Mercedes-Benz USA, LLC, No.
14-0003, 2014 WL 4450431, at *2 (E.D. La. Sept. 10, 2014) (a motion to strike is a “drastic
remedy” that is “disfavored” and “should be used sparingly by the courts”). “A court cannot decide
a disputed issue of fact on a motion to strike.” Spoon, 335 F.R.D. at 470, citing Augustus, 306
F.2d at 868. “Further, courts should not determine disputed and substantial questions of law when
there is no showing of prejudicial harm to the moving party.” Id., citing Augustus, 306 F.2d at
868. “Under such circumstances, the court … should defer action on the motion and leave the
sufficiency of the allegations for determination on the merits.” Id., quoting Augustus, 306 F.2d at
“Although motions to strike are disfavored and infrequently granted, striking certain
allegations can be appropriate when they have no possible relation to the controversy and may
cause prejudice to one of the parties.” Id., quoting American S. Ins. Co. v. Buckley, 748 F.Supp.2d
610, 626-27 (E.D. Tex. 2010). Regardless, “district courts enjoy considerable discretion in ruling
on a motion to strike.” Id., citing American S. Ins., 748 F.Supp.2d at 627. “Any doubt about
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whether the challenged material is redundant, immaterial, impertinent, or scandalous should be
resolved in favor of the non-moving party.” Id. (citation omitted).
Here, as argued by Defendants in their Oppositions, the 2005 Mortgage and Note, the
documents Plaintiffs here seek to strike, both are referenced by Plaintiffs in their Complaint and
“are central to Plaintiffs’ claims.” (R. Docs. 111 at 2 and 114 at 2). Plaintiffs seek to strike them
as attachments to Motions to Dismiss filed by Defendants. Because they were referenced
repeatedly in both Plaintiffs’ Original Complaint (R. Doc. 1-2 at 51-64) and Amended Complaint
(R. Doc. 71)2 and are central to Plaintiffs’ claim in that they reflect a loan by Plaintiffs from
Defendant LoanCity for the property here in question and are part of the assignments of Plaintiffs’
debt with which Plaintiffs take issue, the documents were properly attached to Defendants’
Motions to Dismiss. See Carter v. Target Corp., 541 F.App’x 413, 416 (5th Cir. 2013) (“It is wellestablished that documents that a defendant attaches to a motion to dismiss are considered part of
the pleadings if they are referred to in the plaintiff’s complaint and are central to her claim. In so
attaching, the defendant merely assists the plaintiff in establishing the basis of the suit, and the
court in making the elementary determination of whether a claim has been stated.”) (citation and
internal quotations omitted).
Second, Rule 12(f) allows a court to strike material it finds “redundant, immaterial,
impertinent, or scandalous.” Here, Plaintiffs allege that the note and mortgage in question “are
based on fraud and cannot possibly be a refinance of the original note and mortgage by Equifirst.”
(R. Doc. 106 at 1). However, this is a disputed issue of law and fact that cannot be decided on a
Upon review, the Court found approximately 10 references to the 2005 note and/or mortgage in Plaintiffs’ Amended
Complaint (see, e.g., R. Doc. 71 at 9, 10, 13, 14, 19, 20, 25, and 27) and at least six (6) references in their Original
Complaint (see, e.g., R. Doc. 1-2 at 54, 55, 56, and 60).
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motion to strike. See Spoon, 335 F.R.D. at 470. Further, there is no indication to the Court that
these documents are redundant, immaterial, impertinent, or scandalous.3
For the foregoing reasons, the Court finds no basis for striking Exhibits A & B to Record
Documents 5 and 84. Accordingly,
IT IS ORDERED that Plaintiffs’ Motion to Strike (R. Doc. 106) is DENIED.
Signed in Baton Rouge, Louisiana, on January 6, 2021.
SCOTT D. JOHNSON
UNITED STATES MAGISTRATE JUDGE
As this Court explained in the Spoon case: “’Redundant’ matter consists of allegations that constitute ‘a needless
repetition of other averments in the pleadings.’ ‘Immaterial’ matter is that which ‘has no essential or important
relationship to the claim for relief or the defenses being pleaded,’ such as superfluous historical allegations, ‘or a
statement of unnecessary particulars in connection with and descriptive of that which is material.’ ‘Impertinent’ matter
overlaps with ‘immaterial’ matter and ‘consists of statements that do not pertain, and are not necessary, to the issues
in question.’ Finally, ‘scandalous’ matter improperly casts a derogatory light on someone, most typically on a party
to the action, but ‘it is not enough that the matter offends the sensibilities of the objecting party’ or the person who is
the subject of the statements in the pleading, ‘if the challenged allegations describe acts or events that are relevant to
the action.’ 335 F.R.D. 468 at 470-71, quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1382 (3d ed. 2004).
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