Great American Insurance Company v. Dolese Bros Co et al

Filing 37

ORDER denying 28 Defendant Dolese Bros.' Motion to Strike Certain Statements Made By Plaintiff Great American Insurance Company. See Order for details. Signed by Judge David L. Russell on 06/05/2024. (km)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
(1) GREAT AMERICAN INSURANCE
COMPANY, an Ohio Corporation
Plaintiff,
v.
(1) DOLESE BROS. CO., an Oklahoma
Corporation,
Defendant.

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Case No. CIV-23-01013-R

ORDER
Before the Court is Defendant Dolese Bros.’ Motion to Strike Certain Statements
Made by Plaintiff Great American Insurance Company [Doc. 28]. The Court has
considered Plaintiff’s Response [Doc. 34] and Defendant’s Reply [Doc. 36], and the matter
is at issue. The Motion to Strike is DENIED.
Dolese takes issue with statements made by Great American in Great American’s
Response Brief [Doc. 18] to Dolese’s pending Motion to Dismiss and/or Decline
Jurisdiction [Doc. 10]. Specifically, Dolese claims certain statements by Great American
are flatly inconsistent with positions held by Great American in parallel state court
proceedings between the parties. Doc. 28 at 6. Dolese moves the Court to strike these
inconsistent statements from Great American’s brief under a theory of quasi-estoppel. Id.
The Court cannot do so. “The court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIV. P.
12(f) (emphasis added). The Rules define pleadings as some form of either a complaint or

an answer. See FED. R. CIV. P. 7(a). “Generally, therefore, motions, briefs, and memoranda
may not be attacked by a motion to strike.” Ysais v. New Mexico Jud. Standard Comm'n,
616 F. Supp. 2d 1176, 1184 (D.N.M. 2009) (citing Searcy v. Soc. Sec. Admin., 956 F.2d
278, 1992 WL 43490 at *2 (10th Cir. March 2, 1992)); 5C Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 1380 (3d ed.) (“[M]otions, affidavits, briefs, and
other documents outside pleadings are not subject to Rule 12(f).”).
Beyond the inability under Rule 12(f), Dolese’s chief complaint is now functionally
moot. Great American’s Renewed Motion to Dismiss, Strike or Sever Dolese’s Third-Party
Claim—the source of its allegedly inconsistent statements made in the state court
proceedings—was denied by the state court on May 13, 2024. Doc. 34 at 3; Doc. 36-2.
Thus, Great American does not currently stand to benefit from allegedly inconsistent
positions in the different proceedings, so quasi-estoppel is an ill-fitting theory. See
Robinson v. Am. Airlines, Inc., 743 F. App’x 233, 237 (10th Cir. 2018). Dolese’s Motion
to Strike is DENIED.
IT IS SO ORDERED this 5th day of June 2024.

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