Scherer et al v. Steel Creek Property Owners Association

Filing 51

ORDER denying 22 26 and 29 Motions to Strike. Signed by Magistrate Judge Dennis Howell on 03/03/2014. (thh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:13cv121
WILLIAM R. SCHERER and ANNE
SCHERER,

)
)
)
Plaintiffs,
)
)
v.
)
)
STEEL CREEK PROPERTY OWNERS )
ASSOCIATION, PAUL IOOSS AND
)
STEPHEN IOOSS,
)
)
Defendants.
)
___________________________________ )

ORDER

Pending before the Court are the Motions to Strike [# 22, # 26, & # 29].
Plaintiffs brought this action against Defendants asserting various claims arising
out of a dispute between a property owner and the neighborhood association that
governs the residential community where Plaintiffs’ property is located.
Defendants all move to strike the Amended Complaint in its entirety pursuant to
Rule 12(f). Upon a review of the record, the parties’ briefs, and the relevant legal
authority, the Court DENIES the motions [# 22, # 26, & # 29].
I.

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).
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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,
within 21 days after being served with the pleadings.” Fed. R. Civ. P. 12(f)(2).
Rule 12(f), however, is not the proper mechanism for procuring the dismissal of all
or part of a plaintiff’s complaint. 5C Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1380 (3d ed. 2004). Moreover, “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); 5C Wright & Miller, supra, §1380 (“Both because striking a portion of
a pleading is a drastic remedy and because it often is sought by the movant simply
as a dilatory or harassing tactic, numerous judicial decisions make it clear that
motions under Rule 12(f) are viewed with disfavor by the federal courts and are
infrequently granted.”) see also Teal v. CB Richard Ellis, Inc., Civil Action No.
3:13-CV-169, 2013 WL 5276702 (W.D.N.C. Sept. 18, 2013) (Whitney, C.J.). As a
leading treatise has explained:
The district court possesses considerable discretion in disposing of a
Rule 12(f) motion to strike redundant, impertinent, immaterial, or
scandalous matter. However, because federal judges have made it
clear . . . that Rule 12(f) motions to strike on any of these grounds are
not favored, often being considered purely cosmetic or “time
wasters,” there appears to be general judicial agreement . . . that they
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should be denied unless the challenged allegations have no possible
relation or logical connection to the subject matter of the controversy
and may cause some form of significant prejudice to one or more of
the parties to the action.
5C Wright & Miller, supra, §1382.
This case is a prime example of a situation where a defendant files a motion
to strike as a dilatory tactic to delay resolution of the merits of a case, waste
judicial resources, and increase the costs of litigation on the opposing side. As a
threshold matter, Defendants’ requested relief, that the Court strike the entire
Amended Complaint, is not the proper remedy under Rule 12(f). Rather, the Court
would strike only those portions of the Amended Complaint that are “redundant,
immaterial, impertinent, or scandalous.” Fed R. Civ. P. 12(f); 5C Wright & Miller,
supra, §1380. Nor is Defendants’ primary complaint – that the Amended
Complaint is simply too long –a sufficient ground to have the Amended Complaint
stricken in its entirety. Although Plaintiffs could have drafted the Amended
Complaint in a more concise manner, and many of the paragraphs and statements
in the Amended Complaint are unnecessary, the factual allegations in the Amended
Complaint are not so redundant, immaterial, or impertinent as to warrant striking
the entire Amended Complaint. Moreover, none of the factual allegations in the
Amended Complaint are so scandalous as to warrant being stricken from the

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pleadings.1 Finally, there is no prejudice to Defendants from having to answer the
allegations in the Amended Complaint. To the extent Defendants disagree with
the factual characterizations in the Amended Complaint, they may deny the
allegations. It is clear from the Amended Complaint, however, the claims
Plaintiffs are asserting against each Defendant, as well as the factual basis of each
claim. There is simply no merit to Defendants’ contention that the Court must
strike the Amended Complaint in its entirety under Rule 12(f). Accordingly, the
Court DENIES the motions [# 22, # 26, & # 29].
II.

Conclusion

The Court DENIES the Motions to Strike [# 22, # 26, & # 29].

Signed: March 3, 2014

1
For example, Defendants take issue with the fact that Plaintiffs refer to the Steel Creek Property Owners
Association Board in the Amended Complaint as the “Rogue Board.” Although the Court agrees with Defendants
that such characterization is unnecessary and detracts from the factual allegations in the Amended Complaint, the
term “rogue” is not scandalous within the meaning of Rule 12(f), and the Court will not strike each reference to the
term from the Amended Complaint.

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