FARKAS v. RICH COAST CORPORATION et al

Filing 150

MEMORANDUM ORDER - 1. The plaintiffs motion for leave to file a sur-reply instanter, (Doc. 145 .), while deemed unnecessary, is GRANTED. 2. The plaintiffs motion to strike (Doc. 141 .) is DENIED. 3. The plaintiff shall file any cross motion for summary judgment, along with any substantive response to the defendants motion for partial summary judgment on or before January 6, 2017. Signed by Magistrate Judge Martin C. Carlson on December 15, 2016. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ABBEY FARKAS,

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Plaintiff
v.
RICH COAST CORP., et al.,
Defendants

Civil No. 1:14-CV-272
(Judge Jones)
(Magistrate Judge Carlson)

MEMORANDUM ORDER
Following a lengthy and acrimonious discovery process that has
dogged this action for the past several months, the Ufema defendants
filed a motion for partial summary judgment on October 13, 2016. Even
after this motion was filed, discovery disputes continued to arise, with
the parties exchanging letters regarding the appropriateness of the
defendants’ discovery responses, and about the conduct of counsel in
this case. (Docs. 129, 130, 131.) Following this correspondence, the
Ufema defendants filed a motion to compel discovery, which was
provisionally granted in part, and the parties were directed to exchange
with one another full and complete lists identifying all discovery
responses exchanged to date. (Docs. 138, 140.)
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While the Court was sorting through the remaining discovery
issues that the parties had raised, the Court directed the plaintiff to
respond substantively to the Ufema defendants’ motion for summary
judgment. (Doc. 133.) As part of that response, the Court noted that if
the plaintiff believed that she was due still further discovery responses
that were necessary for her to adequately contest the defendants’
motion, she should resort to and comply with Rule 56(d) of the Federal
Rules of Civil Procedure in order to seek such relief. (Doc.133.) This
response was due to be filed on November 21, 2016.
Rather than file a substantive response to the motion for
summary judgment in the manner directed by Local Rule 56.1, the
plaintiff has filed a document styled as a “Motion to Allow Time for
Discovery Under Rule 56(d) and/or to Strike the Ufema Defendants’
Motion for Summary Judgment.” (Doc. 141.) The parties have fully
briefed these motions, including the submission of a proffered sur-reply
brief. (Docs. 144-149.)
Notwithstanding the title given to the plaintiff’s motion to strike,
which also purports to compel additional discovery under Rule 56(d),
the motion actually seeks a variety of relief in a manner that risks
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bringing further confusion and delay to the prompt and fair resolution
of this action. Review of the motion reveals that it purports to seek no
fewer than four distinct types of relief:

(1) striking the Ufema

defendants’ timely filed motion for summary judgment; (2) denying the
Ufema’s motion for summary judgment; (3) seeking additional discovery
pursuant to Rule 56(d); and (4) granting summary judgment in favor of
the plaintiff.

The breadth of the relief sought, and the scattershot

arguments that are contained within the motion and its accompanying
brief constrain the Court to address the motion promptly and provide
some further direction that will allow these matters to be joined
properly and resolved more effectively.
As a threshold matter, the plaintiff’s motion to strike will be
denied as filed. Motions to strike are governed by Rule 12(f) of the
Federal Rules of Civil Procedure. That rule provides as follows:
(f) Motion to Strike. The court may strike from a
pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter. The court
may act:


(1) on its own; or



(2) 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 pleading.
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Fed. R. Civ. P. 12(f). The purpose of a Rule 12(f) motion is to “clean up the
pleadings, streamline litigation, and avoid the unnecessary forays into immaterial
matters.” United States v. Educ. Mgmt. Corp., 871 F. Supp. 2d 433, 460 (W.D. Pa.
2012) (citation omitted). As an initial matter, motions to strike are generally and
typically used for purposes of striking allegations made in an answer or other
pleading, not for striking a party’s motion for summary judgment brought pursuant
to Rule 56. Cf. Hanover Ins. Co. v. Ryan, 619 F. Supp. 2d 127, 132 (E.D. Pa.
2007) (motions to strike decided on the pleadings alone).
Furthermore, even if a motion to strike were an appropriate means of
responding to the defendants’ motion in this case, on the grounds that the motion
seeks to attack the defendants’ defenses to the plaintiff’s claim, “a motion to strike
an affirmative defense will not be granted where its sufficiency depends on
disputed issues of fact.” Signature Bank v. Check-X-Change, LLC, No. 12-2802,
2013 WL 3286154, at *2 (D.N.J. June 27, 2013) (citing Total Containment, Inc. v.
Environ Products, Inc., No. 91-7911, 1992 WL 208981, at *1 (E.D. Pa. Aug. 19,
1992); see also Newborn Bros., Inc. v. Albion Eng’g Co., 299 F.R.D. 90, 93
(D.N.J. 2014). Thus, “ ‘an affirmative defense can be stricken [on the basis of the
pleadings alone] only if the defense asserted could not possibly prevent recovery
under any pleaded or inferable set of facts.’ ” F.T.C. v. Hope Now Modifications,

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LLC, No. 09-1204, 2011 WL 883202, at *1 (D.N.J. Mar. 10, 2011) (citing Tonka
Corp. v. Rose Art Indus., Inc., 836 F. Supp. 200, 217 (D.N.J. 1993)).
Furthermore, when considering motions to strike pleadings, courts are
enjoined to bear in mind that “motions to strike under Rule 12(f) are highly
disfavored.” Hope Now, 2011 WL 883202, at *1 (citing Garlanger v. Verbeke,
223 F. Supp. 2d 596, 609 (D.N.J. 2002)) (“Because of the drastic nature of the
remedy, . . . motions to strike are usually ‘viewed with disfavor’ and will generally
‘be denied unless the allegations have no possible relation to the controversy and
may cause prejudice to one of the parties, or if the allegations confuse the issues.’ ”
(citing Tonka, 836 F. Supp. at 218).

Indeed, motions to strike are further

disfavored because they are often brought by the movant “simply as a dilatory
tactic.” Hope Now, 2011 WL 883202, at *1 (citing Waste Mgmt. Holdings v.
Gilmore, 252 F.3d 316, 347 (4th Cir. 2001)); see also 5C Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure, § 1381 (3d ed. 2004)
(observing that “[m]otions to strike a defense as insufficient are not favored by the
federal courts because of their somewhat dilatory and often harassing character.”).
Although the Rule permits the striking of redundant, immaterial, impertinent
or scandalous matter contained within a pleading, “ ‘a motion to strike should not
be granted unless the presence of the surplusage will prejudice the adverse party.’ ”
Hope Now, 2011 WL 883202, at *1 (citing Symbol Techs., Inc. v. Aruba Networks,
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Inc., 609 F. Supp. 2d 353, 359 (D. Del. 2009); see also Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure, § 1381 (3d ed. 2004) “[E]ven
when technically appropriate and well-founded, Rule 12(f) motions often are not
granted in the absence of a showing of prejudice to the moving party.”).
“Prejudice occurs when the challenged pleading confuses the issues or is so
lengthy and complex that it places an undue burden on the responding party.”
Karpov. v. Karpov, 307 F.R.D. 345, 348 (D. Del. 2015).
Finally, although courts enjoy considerable discretion in disposing of a
motion to strike under Rule 12(f), id. at 349, “striking a pleading is a ‘drastic
remedy’ to be used sparingly because of the difficulty of deciding a case without a
factual record.” Dann v. Lincoln Nat’l Corp., 274 F.R.D. 139, 142 (E.D. Pa.
2011). A court generally should not grant a motion to strike material in a pleading
unless the material bears “no possible relationship to the controversy and may
cause prejudice to one of the parties, or if the allegations confuse the issues.”
Karpov, 307 F.R.D. at 349 (quoting Eisai Co., Ltd. v. Teva Pharm. USA, Inc., 629
F. Supp. 2d 416, 425 (D.N.J. 2009)).
A.

The Motion to Strike is Denied

All of the foregoing considerations counsel against granting the plaintiff’s
motion to strike. The motion is, in the first instance, simply misplaced. The
plaintiff has taken issue with certain factual representations that the defendants
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have made in their moving papers, but the proper response to those factual
averments and assertions is not to strike them, but to counter them with factual
averments that support the plaintiff’s own positions, and which are themselves
supported by evidence in the record. Indeed, review of the plaintiff’s motion and
brief reveal that she has devoted substantial effort to doing just that, but has then
veered in a procedurally confusion direction by urging the Court to take the
extraordinary step of striking the defendants’ motion and factual assertions. The
Court finds this to be unwarranted, unsupported, and procedurally improper. The
motion to strike will be denied.
B.

To the Extent that the Plaintiff is Seeking Summary Judgment on
Her Own Behalf, She Must File a Motion for Summary Judgment

At times in her motion, the plaintiff purports to be seeking entry of summary
judgment on her own claims in this case, or with respect to certain defenses that
the defendants have raised.

Quite simply, if the plaintiff is seeking entry of

summary judgment, she must file a motion for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure, and she must conform that motion to
the requirements prescribed by the Court’s Local Rules, which compel the filing of
a statement of undisputed material facts, along with citation to evidence in the
record which the plaintiff contends offers support for those factual assertions. See
LR 7.5, 56.1. The plaintiff’s invitation to the Court to grant summary judgment in
her favor through a motion seeking other relief will be denied, without prejudice to
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the plaintiff renewing any request for summary judgment she may have with
respect to claims and defenses in this case by filing a proper motion, brief, and
statement of facts.
C.

To the Extent that the Plaintiff is Opposing the Ufema
Defendants’ Motion for Summary Judgment, She Must File a
Brief and Counterstatement of Material Facts as Required by the
Local Rule and the Customs of Federal Civil Practice

In her motion, the Court understands the plaintiff, in part, to be asserting her
dissatisfaction with the defendants’ discovery production in this action, and with
some of the defendants’ factual representations made in support of their motion.
This has inspired her to request relief pursuant to Rule 56(d) and to urge the Court
to strike the Ufema defendants’ motion for summary judgment. Regardless of the
merits of the plaintiff’s arguments, however, her approach creates procedural
confusion and the Court finds it necessary to direct that she comply with the
requirements that the Court has prescribed for responding to motions for summary
judgment in the first place.
Local Rule 7.6 provides in relevant part that “[a] brief in opposition to a
motion for summary judgment and LR 56.1 responsive statement, together with
any transcripts, affidavits or other relevant documentation, shall be filed within
twenty-one (21) days after service of the movant’s brief.” LR 7.6.
Local Rule 56.1, in turn, provides in relevant part that “[t]he papers
opposing a motion for summary judgment shall include a separate, short and
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concise statement of the material facts, responding to the numbered paragraphs set
forth in the statement required in the foregoing paragraph, as to which it is
contended that there exists a genuine issue to be tried. Statements of material facts
. . . in opposition to [ ] a motion shall include references to the parts of the record
that support the statements. All material facts set forth in the statement required to
be served by the moving party will be deemed to be admitted unless controverted
by the statement required to be served by the opposing party.” LR 56.1.
To date, the plaintiff has not complied with these Local Rules by failing to
file a brief in opposition to the defendants’ motion, and by failing to file a
counterstatment of material facts as to which it is contended that there exists an
issue to be tried. The plaintiff’s latest pleadings seek leave to file a substantive
response in accordance with LR 56.1 if we deny this motion to strike, and we will
order such a response. In this score, we emphasize that adherence to this rule is
not an irrelevant procedural technicality; to the contrary, it is a process that is
intended to assist the parties and the Court in framing the issues in order to ensure
their prompt and fair consideration and resolution. Therefore, to the extent that the
plaintiff intends to oppose the defendants’ motion for summary judgment, she will
be directed to do so in conformity with the Local Rules of this Court, and she will
be directed to reframe her arguments, factual assertions, and citation to record

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evidence supporting those assertions by filing an appropriate brief in opposition,
and counterstatement of material facts that responds to the defendants’ assertions.
D.

Plaintiff’s Request for Additional Discovery Pursuant to Rule
56(d)

Finally, to the extent that the plaintiff purports to assert that she is unable to
respond to the defendants’ motion for summary judgment because she has been
deprived of an opportunity to take necessary discovery she should comply with the
provisions of Rule 56(d) when she responds substantively to this motion for partial
summary judgment.
An appropriate order follows.

ORDER
AND NOW this 15th day of December 2016, IT IS ORDERED as follows:
1. The plaintiff’s motion for leave to file a sur-reply instanter,
(Doc. 145.), while deemed unnecessary, is GRANTED.
2. The plaintiff’s motion to strike (Doc. 141.) is DENIED.
3. The plaintiff shall file any cross motion for summary
judgment, along with any substantive response to the
defendants’ motion for partial summary judgment on or

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before January 6, 2017. All pleadings must comply with the
rules of this Court, including LR 56.1.
4. Further briefing of these potentially dispositive motions
shall be conducted in strict compliance with the rules of this
Court.

/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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