Seubert v. FFE Transportation Services, Inc. et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' motion to strike Notice of Lien (Doc. No. 44) is GRANTED. Signed by District Judge Audrey G. Fleissig on 12/5/2012. (KSM)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JAMES G. SEUBERT,
SERVICES, INC., et al.,
Case No. 4:11CV01651 AGF
MEMORANDUM AND ORDER
This personal injury action arises out of an automobile accident. Plaintiff James
G. Seubert (“Seubert”) alleges that his car was struck from behind by a truck driven by
Defendant William James Beatty (“Beatty”), an employee of Defendant FFE
Transportation Services, Inc., (“collectively Defendants”). Now before the Court is
Defendants’ motion to strike, pursuant to Federal Rule of Civil Procedure 12(f), a Notice
of Lien (Doc. No. 43) filed by non-party, Brewery Development Associates, LLC
(“Brewery”). For the reasons set forth below, Defendants’ motion to strike Brewery’s
Notice of Lien will be granted.
Brewery seeks to assert a lien arising from rents owed it by Pride Cleaning and
Restoration, Inc. (“Pride.”) Plaintiff is the owner and president of Pride, but neither
Brewery nor Pride is a party to this action. In support of the Notice of Lien, Brewery
offers a Forbearance and Lien Agreement (“the Agreement”) between Brewery, Pride,
and Plaintiff, executed after the filing of this suit. See Doc. No. 43-1. Under the
Agreement Brewery agrees to forbear its collection of past due rents from Pride in
exchange for a lien against any amounts Plaintiff may recover in this lawsuit. Id.
Defendants seek to strike the Notice of Lien pursuant to Rule 12(f) on the grounds
that Brewery is not a party to this action, and the lien bears no relation to the subject
matter of this suit. Brewery opposes the motion, asserting that Defendants, as the
movants under Rule 12(f), bear, but have not satisfied, their burden of demonstrating that
the Notice of Lien should be stricken as unrelated to the action. Brewery further
contends that the Notice of Lien should not be stricken because the Court has authority
under Fed. R. Civ. P. 71 to grant relief to a nonparty. Finally, conceding that the lien is
not perfected and the amount uncertain, Brewery nonetheless asserts that the Notice of
Lien should stand because Brewery does not presently seek affirmative relief under the
lien and Defendants cannot show that they have been or will be prejudiced by its filing.
Pursuant to Rule 12(f) a court may strike1 from “any pleading any insufficient
Defendants address the issue before the Court in the context of a motion to
strike. The Court notes, however, that other courts have analyzed similar situations under
Fed. R. Civ. P. 24, asking whether a non-party should be permitted to intervene in order
to assert a lien. See, e.g., Travelers Cas. and Sur. Co. of America v. Southwest
Contracting, No. 4:05CV99-DJS, 2007 WL 1485983, at*1 (E.D. Mo. May 18, 2007)
(considering the propriety of attorney’s lien under Rule 24). For this reason, the Court
also has considered whether Brewery should be permitted to intervene in this action.
An entity may intervene as a matter of right under Fed. R. Civ. P. 24 (a)(2) if a
timely motion to intervene demonstrates an interest in the subject matter of the litigation;
potential impairment of that interest by the disposition of the action; and lack of adequate
representation of the intervenor’s interest by the existing parties to the action. Medical
Liability Mut. Ins. Co. v. Alan Curtis LLC, 485 F.3d 1006, 1008 (8th Cir. 2007). An
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P.
12(f). In addition, Rule 12(f) allows a court to correct the pleadings when a defect “may
affect the merits of the litigation or prejudice one of the parties.” 5C Wright &Miller,
Federal Practice & Procedure § 1382 (3d ed. 2009). “A Rule 12(f) movant bears the
burden of demonstrating that the challenged allegations are so unrelated to plaintiff’s
claim as to be devoid of merit, unworthy of consideration, and unduly prejudicial.”
Kramer & Frank, P.C. v. Wibbenmeyer, No. 4:05CV2395 EWS, 2006 WL 3079097, at*
2 (E.D. Mo. Oct. 27, 2006) (internal quotation omitted). Although striking a pleading is a
“disfavored” measure, BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th
Cir. 2007), courts are afforded broad discretion in ruling on motions to strike.
Nationwide Ins. Co. v. Cent. Mo. Elec. Co-op., 278 F.3d 742, 748 (8th Cir. 2001).
interest is cognizable for purposes of intervention under Rule 24 only where it is “direct,
substantial, and legally protectable.” United States v. Union Elec. Co., 64 F.3d 1152,
1161 (8th Cir. 1995). “An economic interest in the outcome of the litigation is not itself
sufficient to warrant mandatory intervention.” Medical Liability Mut. Ins. Co., 485 F.3d
at 1008. Nor is an interest “‘contingent upon the occurrence of a sequence of events’”
sufficient to satisfy Rule 24(a)(2). Id. (quoting Standard Heating & Air Conditioning Co.
v. City of Minneapolis, 137 F.3d 567, 571 (8th Cir. 1998)).
That Plaintiff may prevail or otherwise recover monies in this action, is not
sufficient to create a nexus between this personal injury action and any debt Plaintiff may
owe to Brewery. Any such nexus arises only with respect to a contingent recovery under
this suit and from the contractual lien set forth in the Agreement. Such conditional and
economic, rather than substantive, concerns are insufficient to constitute an interest in the
subject matter of the litigation for purposes of intervention. See Medical Liability Mut.
Ins. Co., 485 F.3d at 1008. And there is no indication in the record that Brewery’s
intervention here is necessary to avoid impairment of, or to secure adequate
representation of, its purported interests. See Mausolf v. Babbitt, 85 F.3d 1295, 1300 (8th
A motion to strike “should be granted if it may have the effect of making the trial of the
action less complicated, or [it] may have the effect of otherwise streamlining the ultimate
resolution of the action.” U.S. v. Dico, Inc., 189 F.R.D. 536, 541 (S.D. Iowa 1999)
(internal quotation omitted).
Applying these principles to Brewery’s Notice of Lien, the Court is persuaded that
it should be stricken under Rule 12(f). As noted, the lien relates to matters wholly
separate and apart from Plaintiff’s claims in this suit. The unpaid rents referenced in the
Agreement have no relation to the issues before the Court in this personal injury action.2
As such, the Notice of Lien is “irrelevant” and “immaterial” within the meaning of Rule
12(f). In addition, striking the Notice of Lien serves the purposes of Rule 12(f) because
the introduction in this suit of issues related to the Notice of Lien are more likely to
further complicate than to “streamlin[e] the ultimate resolution” of the issues in the suit.
Dico, Inc., 189 F.R.D. at 541 (internal quotation omitted).
Furthermore, although a movant under Rule 12(f) bears the burden of showing
irrelevance or lack of pertinence, a non-party seeking to file a notice of lien or to intervene
must offer some authority for doing so. This Brewery has not done, and its reliance on
Rule 71 is misplaced. Rule 71 provides that where an order “grants relief for a nonparty
or may be enforced against a nonparty, the procedure for enforcing the order is the same
The Court notes that the lien provides no separate basis for the Court’s
exercise of jurisdiction as the parties to the Agreement are not diverse and the amount in
controversy does not exceed $75,000. See 28 U.S.C. § 1332
as for a party.” Fed. R. Civ. P. Rule 71. The fact that “[a] court may make an order in
favor of one not a party,” does not require that a court do so. 12 C. Wright, A. Miller, M.
Kane, & R. Marcus, Federal Practice & Procedure § 13032 (2d ed.).
If Plaintiff should obtain a recovery in this action, Brewery may, at that time,
assert its rights under the Agreement and in the appropriate forum.
IT IS HEREBY ORDERED that Defendants’ motion to strike Notice of Lien
(Doc. No. 44) is GRANTED.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 5th day of December, 2012.
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