Haney v. Marty Cancila Dodge, Chysler, Jeep Sales

Filing 29

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' Motion to Strike Defendant's Recent Supplemental Motion to Dismiss 29 is DENIED. IT IS FURTHER ORDERED that Plaintiff is granted until May 9, 2014, to file his response to Defen dant's Motion to Dismiss. IT IS FURTHER ORDERED that a copy of this Order shall be docketed in Loney A. Haney v. Florissant Dodge Sales, Inc., Case No. 4:13cv1213 CDP, and Raymond J. Schaefer v. Florissant Dodge Sales, Inc., Case No. 4:13cv1215 TCM. Signed by District Judge John A. Ross on 4/22/14. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANDREW W. CHISHOLM,
RAYMOND J. SCHAEFER, and
LONNIE A. HANEY,
Plaintiffs,
vs.
MARTY CANCILA DODGE,
CHYSYLER, JEEP, RAM, a fictitious
name d/b/a FLORISSANT DODGE
SALES, INC.,
Defendant.

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Case No. 4:13cv1212 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Strike Defendant’s Recent
Supplemental Motion to Dismiss. (Doc. No. 29)1 For the following reasons, the motion will be
denied.
In their original complaints, Plaintiffs alleged they were terminated in violation of
various federal employment discrimination laws because of their age, race, gender, disability and
in retaliation for engaging in protected activities. Defendant moved to dismiss the complaints on
the merits, which motions were mooted when Plaintiffs filed amended complaints to correct the
legal name of Defendant. Defendant then refiled its motion to dismiss the amended complaints.
Plaintiffs move to strike Defendant’s motions to dismiss on the grounds that the motions cite
“different ostensible authorities” than the original motions. Defendant responds that because the
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This action is consolidated with Loney A. Haney v. Florissant Dodge Sales, Inc., Case

No. 4:13cv1213 CDP (Doc. No. 28) and Raymond J. Schaefer v. Florissant Dodge Sales, Inc.,
Case No. 4:13cv1215 TCM (Doc. No. 31).
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Court did not rule on the substantive issues raised by the original motions to dismiss, it simply
filed the same motions directed at the amended complaints, with only citations to the updated
record and references to the EEOC Notices of Right to Sue. (Doc. No. 30, p. 2)
As a threshold matter, Plaintiffs are advised that motions to strike are properly directed
only to material contained in pleadings. Fed.R.Civ.P. 12(f) (a court may “strike from a pleading
an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”).
Motions to strike are not favored and are infrequently granted, because they propose a drastic
remedy. Stanbury Law Firm, P.A. v. Internal Revenue Service, 221 F.3d 1059, 1063 (8th
Cir.2000). The Federal Rules of Civil Procedure define pleadings as (1) a complaint; (2) an
answer; (3) a reply to a counterclaim; (4) an answer to a cross claim; (5) a third-party complaint;
and (6) a third party answer. Fed.R.Civ.P. 7(a). “No other paper will be considered a pleading
except those specifically named in Rule 7(a).” 2 James W. Moore, et al., Moore's Federal
Practice § 7.02[1][b] (3rd ed.2010). “Motions, briefs or memoranda, objections, or affidavits
may not be attacked by the motion to strike.” Id., § 12.37[2]. Because Plaintiff's motions are not
directed to pleadings, the Court will not consider them as motions to strike. See Stockdale v.
Stockdale, 2010 WL 1329593, at *1 (E.D.Mo. Apr. 6, 2010).
The Court could construe Plaintiffs’ motion to strike as their opposition to the motion to
dismiss, but declines to do so as it believes Plaintiffs would prefer the opportunity to respond to
the merits of Defendant's motion. The Court will deny the motion to strike on the basis that it
was not directed to a pleading and grant Plaintiffs additional time to file their response to the
merits of Defendant's motion. See id.
Accordingly,

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IT IS HEREBY ORDERED that Plaintiffs’ Motion to Strike Defendant’s Recent
Supplemental Motion to Dismiss [29] is DENIED.
IT IS FURTHER ORDERED that Plaintiff is granted until May 9, 2014, to file his
response to Defendant’s Motion to Dismiss.
IT IS FURTHER ORDERED that a copy of this Order shall be docketed in Loney A.
Haney v. Florissant Dodge Sales, Inc., Case No. 4:13cv1213 CDP, and Raymond J. Schaefer v.
Florissant Dodge Sales, Inc., Case No. 4:13cv1215 TCM.
Dated this 22nd day of April, 2014.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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