McRae Law Firm, PLLC v. Gilmer et al

Filing 34

ORDER denying 32 Defendants' Motion to Strike 31 the Affidavit of John Corlew. Any opposition to Plaintiff's Renewed Motion to Recover Costs shall be filed within fourteen days. Signed by Honorable David C. Bramlette, III on May 31, 2018. (JBR)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MCRAE LAW FIRM, PLLC

PLAINTIFF

V.

CAUSE NO. 3:17-CV-704-DCB-LRA

BARRY W. GILMER, et al.

DEFENDANTS

ORDER
Defendants Barry Wade Gilmer and the Gilmer Law Firm move the
Court [Doc. 32] to strike the affidavit of John Corlew, which
Plaintiff McRae Law Firm, PLLC offers in support of its motion to
recover

the

costs

and

expenses,

including

attorney

fees,

it

incurred as a result of Gilmer’s objectively unreasonable removal
of this action.
Background
This dispute remains before the Court because Gilmer and the
McRae Firm cannot agree on the amount of costs and expenses Gilmer
owes the McRae Firm under 28 U.S.C. § 1447(c) and in accordance
with this Court’s Order and Opinion of January 3, 2018.
On January 3, 2018, the Court remanded this action, concluded
that Gilmer lacked an objectively reasonable basis for removing

it, and awarded the McRae Firm costs under 28 U.S.C. § 1447(c).
See Doc. 13.
Two weeks later, the McRae Firm moved the Court to award it
$7,900 in costs, expenses, and attorney fees. But the motion lacked
the requisite detail. So the Court denied the motion without
prejudice and directed the McRae Firm to file a properly-supported
motion within fifteen days. See Doc. 23.
The McRae Firm timely filed a renewed motion for costs and
expenses on May 11, 2018. See Doc. 28. In its renewed motion, the
McRae Firm explained that attorney John Corlew agreed to provide
an

affidavit

supporting

the

reasonableness

of

the

requested

attorney-fee award. The McRae Firm further explained that because
Mr. Corlew was recovering from surgery, he needed a few extra days
to prepare the affidavit.
The McRae Firm filed Mr. Corlew’s affidavit one week later,
and Gilmer now moves the Court to strike it as untimely.
I
The Court may strike from a pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter.
FED. R. CIV. P. 12(f) (emphasis added).
Mr. Corlew’s affidavit is not a “pleading” under Federal Rule
of Civil Procedure 7(a), so it cannot be struck under Federal Rule

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of Civil Procedure 12(f). See, e.g., South Annville Tp. v. Kovarik,
No. 1:13-CV-1780, 2014 WL 199020, at *5 (M.D. Pa. Jan. 16, 2014);
King v. North Carolina Dep’t of Pub. Safety, No. 5:12-CV-152-F,
2014 WL 69601, at *1 (E.D.N.C. Jan. 8, 2014); 5C Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure, § 1380
(3d ed.).
Even if Gilmer’s Motion to Strike were procedurally proper,
the Court would deny it. Gilmer is in no way prejudiced by the
McRae Firm’s modest delay in offering Mr. Corlew’s affidavit. The
affidavit contains nothing Gilmer would not have anticipated; it
simply says that the rates the McRae Firm includes in its renewed
motion for costs are reasonable for the region. And even if the
contents of Mr. Corlew’s affidavit surprised Gilmer, he will not
be prejudiced by it because the Court will grant him fourteen days
to file an opposition to the McRae Firm’s renewed motion.

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Accordingly,
IT IS ORDERED that Defendants’ Motion to Strike the Affidavit
of John Corlew is DENIED.
FURTHER ORDERED that any opposition to Plaintiff’s Renewed
Motion to Recover Costs shall be filed within fourteen days of
entry of this Order.
SO ORDERED, this the 31st day of May, 2018.
/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE

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