Gierlinger et al v. Town of Brant, NY et al

Filing 44

ORDER denying defendant's motion to strike 37 the amended complaint 36 . Signed by Hon. Jeremiah J. McCarthy on 5/28/2015. (JCCh). (Main Document 44 replaced on 5/28/2015) (JCCh).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DAYID and CHRISTINE GIERLINGER,
Plaintiffs

DECISION AND ORDER

v.

13-cv-00370(A)(M)
TOWN OF BRANT, et al.,
Defendants.

This case has been referred to me by Hon. Richard J. Arcara for supervision of
pretrial proceedings [12]. 1 Before me is defendants' motion to strike the Amended Complaint
pursuant to Fed. R. Civ. P. ("Rule") 12(f) [37]. 2 That motion is nondipositive. Barmore v.
County Fair, Inc., 2005 WL 976420, *1, n. 1 (W.D.N.Y. 2005) (Foschio, M.J.). Oral argument
was held on May 28, 2015 [43]. For the following reasons, the motion is denied.

ANALYSIS
"[B]ecause striking a pmiion of a pleading is a drastic remedy ... motions under
Rule 12(f) are viewed with disfavor by the federal courts and are infrequently granted." SC
Wright, Miller, Kane, et al., Federal Practice & Procedure (Civil) §1380 (3d ed. 2015). "The
motion to strike is disfavored and is not to be granted routinely ... but is within the discretion of
the Court." Brown v. West Valley Environmental Services, LLC, 2010 WL 3369604, *7

Bracketed references are to CM/ECF docket entries.
2

[40].

The Amended Complaint [36] has been redesignated as the Second Amended Complaint

(W.D.N.Y. 2010) (Aracara, J.). "To succeed, the movant must show that it is prejudiced by the
inclusion of the offending pleading." Id. See also New York v. Solvent Chemical Co., Inc., 218
F.Supp.2d 319, 330 (W.D.N.Y. 2002) (Curtin, J.) ("Motions to strike are not favored .... To
prevail on a motion to strike, defendants must show that it is clear that the challenged matter has
no bearing on the subject matter of the litigation and that its inclusion will prejudice the
defendants").
Defendants have not shown their entitlement to relief under Rule 12(f). "Many of
the allegations claimed to be immaterial provide a better understanding of the claim for relief by
providing background facts and thus are proper." Hoffman Motors Corp. v. Alfa Romeo S.p.A.,
244 F.Supp. 70, 81-82 (S.D.N.Y. 1965). Any concerns that the jury may be improperly swayed
by the allegations can be addressed, if necessary, prior to trial. See Martel v. Cadjew, 2011 WL
4386209, *4 (E.D.Cal. 2011) ("Although defendants contend that the paragraphs are irrelevant,
conclusory and inadmissible ... and that there will be a significant risk of prejudice to
defendants if those paragraphs are not stricken since plaintiff may attempt to show the complaint
to a jury, once again, the allegations provide a context for plaintiffs lawsuit .... At trial, or in
appropriate in limine motions it will be determined what testimony and evidence is presented to
the jury").
At oral argument, defendants' attorney also expressed concern that the Second
Amended Complain is a public document. However, I fail to see the likelihood that anyone
reading this pleading would necessarily assume that its allegations are true. "It is fundamental
that unproven allegations are not proof of their content." Scantek Medical, Inc. v. Sabella, 693
F.Supp.2d 235, 241, n. 1 (S.D.N.Y. 2008).
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CONCLUSION
For these reasons, defendants' motion [37] is denied.
Dated: May 28, 2015

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United States Magistrate Judge

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