Mader v. Martin

Filing 34

ORDER denying 30 Motion to Strike. Signed by Magistrate Judge Dennis Howell on 7/29/13. (Pro se litigant served by US Mail.)(nll)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:13cv32
BARBARA EWA MADER,

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Plaintiff,
v.
JEFFREY DEAN MARTIN,
Defendant.
_______________________________

ORDER

Pending before the Court is Defendant’s Motion to Strike [# 30]. Defendant
moves the Court to strike unspecified paragraphs of the Amended Complaint
pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. The Court
DENIES the motion [# 30].
I.

Background

Plaintiff filed her Complaint on February 5, 2013, asserting claims pursuant
to Section 213A of the Immigration and Naturalization Act. Eight days later,
Plaintiff filed an Amended Complaint, which rendered the original Complaint void
of any legal function in the case. See Young v. City of Mount Ranier, 238 F.3d
567, 572 (4th Cir. 2001). Defendant, however, proceeded to file an Answer to the
Complaint and Counterclaims on March 22, 2013, apparently unaware of the filing

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of the Amended Complaint. Subsequently, on April 19, 2013, Defendant filed an
Answer to the Amended Complaint and asserted a Counterclaim against Plaintiff.
Nearly two months after filing his Answer to the Amended Complaint and four
month after Plaintiff filed her Amended Complaint, Defendant filed a Motion to
Strike pursuant to Rule 12(f). The motion contained one paragraph and requested
that the Court strike unspecified portions of the Complaint. Because the motion
failed to comply with the Court’s Local Rules, the Court denied the motion without
prejudice. (Order, June 20, 2013.) Nearly a month later, Defendant filed a second
Motion to Strike. This motion contained a supporting memorandum of law
spanning approximately one and a half pages. Again, Defendant failed to actually
specify in the motion which paragraphs of the Amended Complaint the Court
should strike or to develop a legal argument much beyond a cursory request for the
Court to strike the “irrelevant, immaterial, impertinent and scandalous” portions of
the Amended Complaint.
II.

Analysis

Rule 12(f) provides that the Court may strike from a pleading “any
redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
The Court may act on its own in striking such matters or “on motion made by a
party either before responding to the pleading or, if a response is not allowed,

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within 21 days after being served with the pleadings.” Fed. R. Civ. P. 12(f)(2).
“Rule 12(f) motions are generally viewed with disfavor because striking a portion
of a pleading is a drastic remedy and because it is often sought by the movant
simply as a dilatory tactic. “ Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d
316, 347 (4th Cir. 2001).
As a threshold matter, Defendant’s motion is untimely because he filed the
motion to strike portions of the Amended Complaint well after filing his Answer to
the Amended Complaint. Fed R. Civ. P. 12(f)(2); Massey v. Ojaniit, Civil Action
No. 3:11-CV-477-RFJ-DCK, 2012 WL 2992129 (W.D.N.C. Jul 20, 2012)
(Keesler, Mag. J.); 5A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane,
Richard L. Marcus, Adam N. Steinman, Federal Practice and Procedure § 1380 (2d
ed. 1990). If Defendant wanted to move to strike portions of the Amended
Complaint, he should have filed a motion to strike pursuant to Rule 12(f) prior to
filing his answer. Fed. R. Civ. P. 12(f). Accordingly, Defendant’s motion is
untimely, and the Court DENIES the motion [# 30].
Rule 12(f), however, also allows the Court to consider striking materials
from pleadings on its own at any time. Fed. R. Civ. P. 12(f)(1). Upon a review of
the record, the Defendant’s motion, and the relevant legal authority, the Court
declines to strike any portion of the Amended Complaint on its own. Defendant’s

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legal memorandum, which spans no more than a page and half, fails to articulate
more than a cursory argument for why the Court should strike portions of the
Amended Complaint. The brief also fails to specific precisely which portions of
the Amended Complaint the Court should strike and fails to set forth argument as
to why the specific portions of the Amended Complaint should be stricken from
the record. The legal memorandum filed by Defendant is insufficient to
demonstrate to the Court that striking any portion of the Amended Complaint
pursuant to Rule 12(f) is necessary in this case.
Finally, the Court has reviewed the Amended Complaint at length and
cannot say that the allegations are so redundant, immaterial, impertinent, or
scandalous that they should be stricken from the record by the Court on its own
accord at such an early stage of the proceedings. This Court is not in a position at
this time to say whether the factual allegations of alleged abuse contained in the
Amended Complaint are true or whether they are entirely immaterial to the legal
issues before the Court.
III.

Conclusion

The Court DENIES the Motion to Strike [# 30].
Signed: July 29, 2013

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