Smith v. Charter Communications

Filing 34

ORDER denying 28 Motion to Strike 23 Answer to Amended Complaint. Signed by District Judge Max O. Cogburn, Jr on 3/13/2019. (Pro se litigant served by US Mail.) (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:18-cv-00080-MOC-DSC
HARVEY SMITH,

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Plaintiff,
Vs.
CHARTER COMMUNICATIONS,
Defendant.

ORDER

THIS MATTER is before the Court on plaintiff’s pro se Motion to Strike Answer to
Amended Complaint.
As a preliminary matter, the Fourth Circuit Court of Appeals has noted that motions to
strike pursuant to Rule 12(f) are disfavored and should be granted infrequently. See Waste Mgmt.
Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001); see also Renaissance Greeting Cards,
Inc. v. Dollar Tree Stores, 227 F. App’x 239, 247 (4th Cir. 2007). “Nevertheless, a defense that
might confuse the issues in the case and would not, under the facts alleged, constitute a valid
defense to the action can and should be deleted.” 5C Charles Wright & Arthur Miller, Federal
Practice & Procedure § 1380, 647 (3d ed. 2011). The decision to grant or deny a motion under
Rule 12(f) is discretionary. Renaissance Greeting Cards, 227 Fed. App'x. at 246. In order to
prevail on the motion, plaintiff must demonstrate that the matter at issue is both “prejudicial” and
of the type “envisioned” by Rule 12(f). Brown v. Ins. for Family Centered Servs., Inc., 394 F.
Supp. 2d 724, 727 (M.D.N.C. 2005).

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Plaintiff has moved to strike all 15 of defendant’s affirmative defenses. The key to
affirmative defenses is fair notice, not plausibility. Whether defendant has provided evidence to
support its defenses is inconsequential at this point. See Pracht v. Saga Freight Logistics, LLC,
No. 3:13-CV-529, 2014 WL 1281189, at *1 (W.D.N.C. Mar. 27, 2014) (denying motion to strike
despite argument that allegations were “unsupported statements” where allegations had bearing on
plaintiff’s claim). Plaintiff has not shown the affirmative defenses have “no possible bearing upon
the subject matter to the litigation,” Simaan, Inc. v. BP Products North America, Inc., 395 F. Supp.
2d 271, 278 (M.D.N.C 2005), or that the inclusion of these affirmative defenses is prejudicial to
him in any way. See Brown, 394 F. Supp. 2d at 727. Therefore, the Court finds that plaintiff has
not met his burden under Rule 12(f). Having considered plaintiff’s motion and reviewed the
pleadings, the Court enters the following Order.
ORDER
IT IS, THEREFORE, ORDERED that plaintiff’s pro se Motion to Strike Answer to
Amended Complaint (#28) is DENIED.

Signed: March 13, 2019

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