Choice Escrow and Land Title, LLC v. BancorpSouth Bank
Filing
50
ORDER denying 39 motion to strike portions of first amended answer. Signed on 2/14/12 by Magistrate Judge John T. Maughmer. (Alexander, Pam)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
CHOICE ESCROW AND LAND TITLE, LLC,
Plaintiff,
v.
BANCORPSOUTH BANK,
Defendant.
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Case No. 10-03531-CV-S-JTM
ORDER
On November 11, 2011, Choice Escrow and Land Title, LLC (“Choice”), the plaintiff
herein, filed a motion to strike certain affirmative defenses contained in the First Amended
Answer to the Second Amended Complaint filed by defendant BancorpSouth Bank (“BSB”).
Pursuant to the Federal Rules of Civil Procedure, a court “may order stricken from any
pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” FED. R. CIV. P. 12(f). The grant or denial of a motion to strike is committed to the
Court’s discretion. Federal Deposit Insurance Corp. v. Niblo, 821 F.Supp. 441, 449 (N.D. Tex.
1993). Moreover, motions to strike a defense will be denied “if the defense is sufficient as a
matter of law or if it fairly presents a question of law or fact which the court ought to hear.”
Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977). As one court has noted:
The party moving to strike under authority of [Rule] 12(f) bears a
heavy burden. . . . The Court may grant a motion to strike an
affirmative defense only if no questions of law or fact exist and the
defense sought to be stricken could not succeed under any set of
circumstances.
Burns v. Office of Attorney General, 2007 WL 2247600, op. at *8 (D. Minn. Aug. 2, 2007)1
(quoting First Bank System, Inc. v. Martin, 782 F.Supp. 425, 426 (D. Minn. 1991)). Thus,
“because striking a portion of a pleading is a drastic remedy, and because it often is sought by the
movant simply as a dilatory tactic, motions under Rule 12(f) are viewed with disfavor and are
infrequently granted.” Niblo, 821 F.Supp. at 449 (N.D. Tex. 1993).
Having carefully considered the parties arguments, the Court denies the pending motion
to strike. Compare Augustus v. Board of Public Instruction, 306 F.2d 862, 868 (5th Cir. 1962)
(“[W]hen there is no showing of prejudicial harm to the moving party, ... the courts generally are
not willing to determine disputed and substantial questions of law upon a motion to strike.”);
Bryant v. American Nat’l Bank & Trust Co., 407 F.Supp. 360, 363 (N.D. Ill. 1976) (“A motion to
strike a defense should be denied if the defense presents a question of law which the court should
hear.”); South v. United States, 40 F.R.D. 374, 376 (N.D. Miss. 1966) (motion to strike “not
intended to furnish an opportunity for the determination of disputed and substantial questions of
law.”).
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The Niblo court expressed the burden in even more draconian terms:
In order to succeed on a motion to strike surplus matter from an
answer, it must be shown that the allegations being challenged are
so unrelated to plaintiff's claim as to be unworthy of any
consideration as a defense and that their presence in the pleading
throughout the proceeding will be prejudicial to the moving party.
Niblo, 821 F.Supp. at 449 (N.D. Tex. 1993).
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Accordingly, it is
ORDERED that Plaintiff’s Motion To Strike Directed At Defendant’s First Amended
Answer To Second Amended Complaint, filed November 9, 2011 [Doc. 39] is DENIED.
/s/ John T. Maughmer
JOHN T. MAUGHMER
U. S. MAGISTRATE JUDGE
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