Herford et al v. Asplundh Tree Expert Company et al

Filing 29

ORDER denying 21 Motion to Strike Allegations in Plaintiffs' Complaint. Signed by District Judge Max O. Cogburn, Jr on 09/26/17. (emw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:17-cv-188
SHANNON HERFORD AND DORELLY
HERFORD,
Plaintiffs,
v.
ASPLUNDH TREE EXPERT COMPANY AND
DUKE ENERGY CAROLINAS, LLC,
Defendants.

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ORDER

THIS MATTER is before the court on defendants’ Motion to Strike Allegations in
Plaintiffs’ Complaint. Having considered the motion and reviewed the pleadings, the court enters
the following Order.
The Motion asks to strike the following paragraphs from plaintiffs’ Complaint (#1):
On information and belief, in 2015, a similar lawsuit styled
Duke Energy Progress, Inc. v. John M. Kane, et al, 15-cv6560, was filed in Wake County, North Carolina (the “Kane
Suit”), wherein the defendant answered that Duke had
proposed to violate its own guidelines for tree trimming.
On information and belief, the Kane Suit is still pending.
On information and belief, at some point in 2016, and as a
direct result of the Kane Suit, Duke disabled the link to
https://www.duke-energy.com/safety/right-ofwaymanagement/pec-vegetation-management-methods.asp
and removed its published tree-trimming guidelines so that
they are no longer available to the public in any form or
manner.

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On information and belief, an expert in the Kane Suit
testified that he personally read Duke’s tree cutting
guidelines prior to their removal from public access.
On information and belief, that expert testified that Duke’s
guidelines clearly and unambiguously state that Duke’s
policy is to trim tree limbs and other vegetation back to a
distance of approximately ten (10) feet from its power lines.
(#1) at ¶ 22-26. Defendants contend that the allegations made in this paragraph are irrelevant and
prejudicial, and made simply for the improper purpose of being read to a jury. (#22) at 5.
Rule 12(f) governs a motion to strike the pleadings in full or in part. Rule 12(f) provides
that the court “may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” (emphasis added). The use of “may” indicates that the court
has substantial discretion in its decision whether to grant such a motion.
Rule 12(f) Motions are viewed with “disfavor” as the striking of a pleading is “a drastic
remedy.” Waste Management Holdings v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001). A motion
to strike places a “sizable burden on the movant, and would typically require a showing that
denial of the motion would prejudice the movant.” Miller v. Rutherford Cty., No.1:08CV441,
2008 WL 5392057, at *4 (W.D.N.C. Dec. 19, 2008) (internal citation and quotations omitted).
Thus, before a motion to strike can be granted, the allegations must be the redundant, immaterial,
impertinent, or scandalous type of allegations described by Rule 12(f), as well as prejudicial. See
Brown v. Inst. For Family Centered Servs., Inc., 394 F. Supp. 2d 724, 727 (M.D.N.C. 2005)
(citing Hare v. Family Pub. Serv., Inc., 342 F.Supp. 678, 685 (D.Md. 1972).
After reviewing the pleadings, including plaintiff’s response (#27), the court finds that
the defendants have not met their high burden in this matter, and chooses not to exercise its
discretion at this time. The court finds the allegations contained in paragraphs 22 to 26 are
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indeed relevant, as they go to whether tree-trimming guidelines existed and to what degree they
were violated when the defendants allegedly destroyed the white pine tree at issue in this case.
Furthermore, the court does not find that substantial prejudice would result, particularly after
plaintiff elaborated in their response on how and where they received the information that
supported the allegations at issue. (#7) at 2-3, 5-6. Accordingly, defendants have not met their
burden on this 12(f) Motion, and it will be denied.
ORDER
IT IS, THEREFORE, ORDERED that defendants’ Motion to Strike Allegations in
Plaintiffs’ Complaint (#21) is DENIED.

Signed: September 26, 2017

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