Federal Trade Commission v. Ivy Capital, Inc. et al

Filing 344

ORDER Denying 321 Motion to Strike 319 Status Report. Signed by Magistrate Judge George Foley, Jr on 11/1/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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FEDERAL TRADE COMMISSION,

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Plaintiff,
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vs.
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IVY CAPITAL, INC., et al.,
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Defendants, and
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CHERRYTREE HOLDINGS, LLC, et al.,
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Relief Defendants.
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__________________________________________)

Case No. 2:11-cv-00283-JCM-GWF
ORDER
Motion to Strike - #321

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This matter is before the Court on Defendant Benjamin Hoskins’ and Relief Defendant Leanne

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Hoskins’ Motion to Strike “Report of Receiver’s Activities for the Period of March 14, 2011 through

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July 31, 2012” (#321), filed on September 12, 2012, and Receiver Robb Evans & Associate LLC’s

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Opposition to Motion to Strike “Report of Receiver’s Activities (#334), filed on October 1, 2012. No

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reply was filed.

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Defendants move to strike the Receiver’s Report on the grounds that it discusses entities and

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financial assets, accounts or transactions that are not relevant to the subject matter of this action or the

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Receiver’s responsibilities. Defendants bring their motion pursuant to Rule 12(f) of the Federal Rules

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of Civil Procedure which provides that the court may strike from a pleading any insufficient defense or

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any redundant, immaterial, impertinent, or scandalous matter. A motion to strike is limited to

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pleadings. Howard v. Skolnik, 2012 WL 3656494, *1 (D.Nev. 2012), citing Sidney-Vinstein v. A.H.

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Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). “‘However, a ‘motion to strike’ materials that are not

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part of the pleadings may be regarded as an ‘invitation’ by the movant ‘to consider whether [proffered

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material] may be properly relied upon.’” Id., quoting Natural Resources Defense Council v.

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Kempthorne, 539 F.Supp.2d 1155, 1162 (E.D.Cal. 1999). Motions to strike are disfavored and should

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not be granted unless it is clear that the matter to be stricken could have no possible bearing on the

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subject matter of the litigation. Germaine Music v. Universal Songs of Polygram, 275 F.Supp.2d 1288,

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1300 (D.Nev. 2003).

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The Receiver’s Report is not a pleading and is therefore not a proper subject of a motion to

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strike under Rule 12(f). Furthermore, even if the motion can be entertained under Rule 12(f),

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Defendants have not met their burden of demonstrating that the Receiver’s Report has no possible

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bearing on the subject matter of this case. The Receiver’s Report purports to advise the Court on the

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Receiver’s efforts to locate and account for assets that are subject to the receivership. The Receiver has

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described certain financial transactions and legal proceedings in other courts regarding bank accounts or

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funds that might potentially be subject to the receivership. Based on his investigation, the Receiver has

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provided an explanation of the status of those matters to the Court, including why certain funds are not

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within the scope of the receivership. The Court finds that this discussion is relevant to the Receiver’s

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responsibility to account to the Court for the property of the receivership. Accordingly,

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IT IS HEREBY ORDERED that Defendant Benjamin Hoskins’ and Relief Defendant Leanne

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Hoskins’ Motion to Strike “Report of Receiver’s Activities for the Period of March 14, 2011 through

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July 31, 2012” (#321) is denied.

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DATED this 1st day of November, 2012.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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