Duke v. Gavin et al
Filing
17
MEMORANDUM OPINION AND ORDER re: MOTION to Strike 15 Response to Petition for Habeas Corpus, filed by Marshall Elwood Duke. Accordingly, for the foregoing reasons, the petitioners motion to strike (Doc. 16), is DENIED and motion is instead deemed as a partial traverse to the petition. Signed by Magistrate Judge Martin C. Carlson on October 31, 2013. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARSHALL DUKE,
Petitioner,
v.
WAYNE GAVIN, et al.,
Respondents.
:
:
:
:
:
:
:
:
:
Civil No. 4:13-CV-1969
(Judge Brann)
(Magistrate Judge Carlson)
MEMORANDUM OPINION AND ORDER
I.
Statement of Facts and of the Case.
This case comes before the Court on a motion to strike filed by the petitioner,
(Doc. 16), a motion which asks this Court to strike the response to the petitioner’s
habeas corpus petition, arguing that this response is misleading and inaccurate. For
the reasons set forth below, we will deny this motion, but will treat Duke’s motion as
a partial traverse to the petition, and will consider his arguments when we address the
merits of this case.
II.
Discussion
A. Rule 12(f), the Legal Standard
Rule 12(f) of the Federal Rules of Civil Procedure governs motions to strike
pleadings and provides, in part, that:
(f) Motion to Strike. The court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.
F. R.Civ. P., Rule 12(f).
While rulings on motions to strike rest in the sound discretion of the court, Von
Bulow v. Von Bulow, 657 F.Supp. 1134, 1146 (S.D.N.Y. 1987), that discretion is
guided by certain basic principles. Because striking a pleading is viewed as a drastic
remedy, such motions are “generally disfavored.” Kaiser Aluminum & Chemical
Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (C.A.La., 1982). As one
court has aptly observed: “striking a party's pleadings is an extreme measure, and,
as a result, . . . ‘[m]otions to strike under Fed .R.Civ.P. 12(f) are viewed with
disfavor and are infrequently granted.’ Lunsford v. United States, 570 F.2d 221, 229
(8th Cir.1977) (citing 5 Wright & Miller, Federal Practice and Procedure. Civil §
1380 at 783 (1969)). See also, Resolution Trust Corp. v. Gibson, 829 F.Supp. 1103,
1106 (W.D.Mo.1993); 2 James Wm. Moore et al., Moore's Federal Practice §
2
12.37[1] (3d ed. 2000).” Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir.
2000). In practice, courts should exercise this discretion and strike pleadings only
when those pleadings are both “redundant, immaterial, impertinent, or scandalous”
and prejudicial to the opposing party. Ruby v. Davis Foods, Inc., 269 F.3d 818, 820
(7th Cir. 2001).
Moreover, consistent with this sparing approach urged by the courts with
respect to motions to strike, those “pleadings” that may be subject to a motion to
strike are construed narrowly.
Recognizing that briefs are, by their nature,
argumentative and sometimes contentious filings, it is generally held that a brief–as
opposed to other forms of pleadings– typically will not be considered a “pleading”
which is properly the subject of a motion to strike. Hrubec v. National R.R.
Passenger Corp., 829 F.Supp. 1502, 1506 (N.D.Ill.,1993), citing Anna Ready Mix,
Inc. v. N.E. Pierson Const. Co., 747 F.Supp. 1299, 1303 (S.D.Ill.1990), and Board of
Education v. Admiral Heating and Ventilation, Inc., 94 F.R.D. 300, 304
(N.D.Ill.1982).
In this case, upon consideration of this motion to strike we find that the object
of that motion, a response which is, in part, in the nature of a brief, is not the
appropriate subject of a motion to strike. Hrubec v. National R.R. Passenger Corp.,
829 F.Supp. 1502, 1506 (N.D.Ill.,1993). Furthermore, recognizing that “[m]otions
3
to strike under Fed .R.Civ.P. 12(f) are viewed with disfavor and are infrequently
granted,” Lunsford v. United States, 570 F.2d 221, 229 (8th Cir.1977), we find that
it has not been shown that the assertions in this response are both “redundant,
immaterial, impertinent, or scandalous” and unfairly prejudicial. Ruby v. Davis
Foods, Inc., 269 F.3d 818, 820 (7th Cir. 2001). Therefore, in the exercise of our
discretion, Von Bulow v. Von Bulow, 657 F.Supp. 1134, 1146 (S.D.N.Y. 1987), we
will deny this motion to strike. However, because we understand the concerns that
motivated the petitioner to file this pleading, the Court will, instead, treat this motion
to strike as a partial traverse to the petition, and will consider the petitioner’s
arguments in ruling upon this petition.
III.
Conclusion
Accordingly, for the foregoing reasons, the petitioner’s motion to strike (Doc.
16) , is DENIED and motion is instead deemed as a partial traverse to the petition.
So ordered this 31st day of October 2013.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
4
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?