Wallace et al v. Pavilion Partners et al
ORDER denying with prejudice 8 Motion to Strike. Signed by District Judge Max O. Cogburn, Jr on 8/7/2017. (chh)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
DOCKET NO. 3:17-cv-00370-MOC-DSC
THOMAS VAN WINGERDEN
LINDSEY VAN WINGERDEN,
LEGENDS HOSPITALITY, LLC
LIVE NATION WORLDWIDE, INC.
LIVE NATION ENTERTAINMENT, INC.,
THIS MATTER is before the court on the Motion to Strike (#8) proffered by defendants
Live Nation Worldwide and Live Nation Entertainment (collectively “Live Nation”). Having
considered the motion and reviewed the pleadings, the court enters the following Order.
The Motion asks the court to strike the following paragraph from plaintiffs’ Complaint
Live Nation touts itself as the “Global Leader for Live
Entertainment,” boasts having 530 million fans across 37
countries, and reported revenue for [Live Nation
Entertainment] of $7.2 billion in 2015 alone.
(#1) at ¶ 17. Live Nation contends that the allegations made in this paragraph are not only
irrelevant, but they are also highly prejudicial. (#9) at 4-5. Further, Live Nation argues that any
probative value of this allegation is outweighed by its unfair prejudice. (#9) at 3.
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).
Inter alia, Live Nation contends that this information will have prejudicial impact,
including a newspaper article in its filings that refers to the paragraph in question. (#9) at 5 and
(#9-1). The court cannot so find.
The information contained within paragraph 17, as quoted above, is generally available
on Live Nation’s website. For example, one publically-available article “Live Nation
Entertainment Reports Fourth Quarter and Full Year 2015 Results,” notes that Live Nation
reported revenue of $7.2 billion in 2015. See http://investors.livenationentertainment.com/newscenter/news-center-details/2016/Live-Nation-Entertainment-Reports-Fourth-Quarter-And-FullYear-2015-Results/default.aspx.
Indeed, the home page of Live Nation Entertainment notes prominently the phrase “We
are the Global Leader for Live Entertainment,” next to the phrases “550 million fans” and “40
countries.” The court includes here a picture of these claims on Live Nation’s home page
(http://www.livenationentertainment.com/) as of the date of this Order.
Live Nation claims that its own prominently displayed, publically-available information
about its company is prejudicial to itself in the present action. The court cannot so find. There is
some prejudice that naturally occurs when a defendant is sued, especially if there is publicity
around the suit.
Live Nation compares the potential prejudice it will suffer to that of a mugshot. (#14) at
4. In E.E.O.C. v. Bo-Cherry, Inc., this court struck the inclusion of a mugshot to prove that a
plaintiff in a civil rights suit trimmed and neatly maintained his beard. No. 3:13-CV-00210MOC, 2013 WL 2317724, at *2 (W.D.N.C. May 28, 2013). Plaintiff in that suit was arguing that
he was fired for his religious belief, specifically wearing a beard under the tenants of Islam. This
court in that case agreed that “any reference to the Complainant's alleged criminal record is
immaterial, impertinent, and scandalous as it would unduly prejudice plaintiff in pursuing the
serious civil rights issues raised in this case.” Id.
Bo-Cherry is highly distinguishable. In that case, a mugshot in an unrelated criminal
matter in a pleading in a civil rights suit. Here, a sophisticated corporate defendant alleges that its
publically-available earnings and descriptive information is somehow prejudicial in a negligence
suit. Any prejudice to these corporate defendants from the information in paragraph 17 is
minimal, and further minimized as the information is available on its own website, including
prominently display on its home page. Accordingly, Live Nation has not met its high burden on
this 12(f) Motion, and it will be denied.
IT IS, THEREFORE, ORDERED that Live Nation’s Motion to Strike (#8) is
DENIED, with prejudice.
Signed: August 7, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?