Watson Carpet & Floor Covering, Inc. v. Mohawk Industries, Inc. et al

Filing 234

ORDER: For the foregoing reason, the undersigned Magistrate Judge finds that Defendant's motion to strike the rebuttal expert witness report of James D. Reitzes should be DENIED without prejudice to Defendant's right to file a properly su pported motion seeking to exclude portions of Mr. Reitzes's testimony from evidence. The Clerk is directed to TERMINATE as moot Defendant's motion to ascertain status of motion to strike 90 . It is so ORDERED. Signed by Magistrate Judge John S. Bryant on 3/22/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
WATSON CARPET & FLOOR COVERING,
INC.,
Plaintiff,
v.
MOHAWK INDUSTRIES, INC.,
Defendant .

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NO. 3:09-0487
Judge Wiseman/Bryant
Jury Demand

O R D E R
Defendant Mohawk Industries, Inc. (“Mohawk”) has filed
its motion to strike the rebuttal report of Plaintiff’s expert
witness James D. Reitzes (Docket Entry No. 78).

Plaintiff has

filed a response in opposition (Docket Entry No. 82), and Defendant
has filed a reply (Docket Entry No. 86).

Plaintiff thereafter

filed a sur-reply (Docket Entry No. 89).
The Sixth Circuit Court of Appeals has found that a
motion to strike pursuant to Federal Rule of Civil Procedure 12(f)
is limited to material contained in pleadings.

The Court has

stated as follows:
Under Fed. R. Civ. P. 12(f), a court may strike only
material that is contained in the pleadings. Fed. R.
Civ. P. 7(a) defines pleadings as “a complaint and an
answer; a reply to a counterclaim denominated as such; an
answer to a cross-claim, if the answer contains a crossclaim; a third-party complaint, if a person who was not
an original party is summoned under the provisions of
Rule 14; and a third-party answer, if a third-party
complaint is served.” Exhibits attached to a dispositive
motion are not “pleadings” within the meaning of Fed. R.
Civ. P. 7(a) and are therefore not subject to a motion to
strike under Rule 12(f).

Fox v. Michigan State Police Dept., 173 Fed. Appx. 372, 2006 WL
456008 (6th Cir. Feb. 24, 2006).

Similarly, discovery sanctions

contained in Rule 37 of the Federal Rules of Civil Procedure
authorize “striking” only pleadings.

See Rule 37(b)(2)(A)(iii).

Upon this authority, the undersigned finds that a written
report of an expert witness pursuant to Rule 26(a)(2)(B) is not a
pleading and therefore is not subject to being “stricken.”
For the foregoing reason, the undersigned Magistrate
Judge finds that Defendant’s motion to strike the rebuttal expert
witness report of James D. Reitzes should be

DENIED

without

prejudice to Defendant’s right to file a properly supported motion
seeking

to

exclude

portions

of

Mr.

Reitzes’s

testimony

from

evidence.
The Clerk is directed to TERMINATE as moot Defendant’s
motion to ascertain status of motion to strike (Docket Entry No.
90).
It is so ORDERED.
s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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