BUTTERMILK SKY OF TN LLC et al v. BAKE MOORE, LLC et al

Filing 69

MEMORANDUM OPINION AND ORDER granting 47 Counter-Defendant Buttermilk Sky Franchising, Inc.'s Motion to Strike Pursuant to Rule 12(f) filed by BUTTERMILK SKY FRANCHISING, INC. Signed by District Judge Amos L. Mazzant, III on 10/27/2020. (daj, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

BUTTERMILK SKY OF TN LLC and
BUTTERMILK SKY FRANCHISING
INC..,
Plaintiffs,
v.
BAKE MOORE, LLC, ONE MOORE
TIME, LLC, CLARK BAKERY FRISCO
LLC, AGAPE PIES LLC, CRAIG MOORE,
DONNIE ROBERTSON, LEAH CLARK,
and RACHEL DYMOND
Defendants.

BAKE MOORE, LLC, ONE MOORE
TIME, LLC, and DONNIE ROBERTSON,
Counter-Plaintiffs
v.
BUTTERMILK SKY FRANCHISING,
INC., SCOTT O. LAYTON, and
MEREDITH LAYTON,
Counter-Defendant and Third-Party
Defendants.

§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§

Civil Action No. 4:20-cv-00327
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Counter-Defendant Buttermilk Sky Franchising Inc.’s Motion
to Strike Pursuant to Rule 12(f) (Dkt. #47). Having considered the Motion and relevant briefing,
the Court finds the Motion should be DENIED.

BACKGROUND
On June 15, 2020, Counter-Plaintiffs Bake Moore, LLC; One Moore Time, LLC; and
Donnie Robertson (collectively, “Counter-Plaintiffs”) filed their First Amended Counterclaim
(Dkt. #31). On June 29, Counter-Defendant Buttermilk Sky Franchising, Inc. (“BSFI”) filed its
Motion to strike substantial portions of the Counterclaim (Dkt. #47). On July 10, CounterPlaintiffs responded (Dkt. #53). On July 17, BSFI replied (Dkt. #56).
LEGAL STANDARD
Rule 12 of the Federal Rules of Civil Procedure provides “the court may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
FED. R. CIV. P. 12(f). The Court has the authority to act on its own or pursuant to a “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. FED. R. CIV. P. 12(f)(1–2). The Fifth Circuit has stated that
motions to strike are generally disfavored. See Kaiser Aluminum & Chem. Sales, Inc. v. Avondale
Shipyards, 677 F.2d 1045, 1058 (5th Cir. 1982). They are viewed with disfavor and infrequently
granted, both because striking portions of pleadings is a drastic remedy and because it is often
sought by a movant simply as a dilatory tactic. See Bailey Lumber & Supply Co. v. GeorgiaPacific Corp., 2010 WL 1141133, at *4–5 (S.D. Miss. Mar. 19, 2010) (citing FDIC v. Niblo, 821
F. Supp. 441 (N.D. Tex. 1993)). Although motions to strike are disfavored and infrequently
granted, striking certain allegations can be appropriate when they have no possible relation to the
controversy and may cause prejudice to one of the parties. Jefferson Parish Consol. Garbage Dist.
No. 1 v. Waste Mgmt. of La., 2010 WL 1731204, at *5 (E.D. La. Apr. 28, 2010) (citing Boreri v.
Fiat S.p.A., 763 F.2d 17, 23 (1st Cir. 1985); Berry v. Lee, 428 F. Supp. 2d 546, 563 (N.D. Tex.
2006); McInerney v. Moyer Lumber & Hardware, Inc., 244 F. Supp. 2d 393, 401 (E.D. Pa. 2002)).

2

The Court possesses considerable discretion in ruling on a motion to strike. Bailey, 2010 WL
1141133, at *4–5 (citing Niblo, 821 F. Supp. at 449).
ANALYSIS
BSFI moves to strike a substantial portion of Counter-Plaintiffs factual allegations because
they “confuse the actual issues” and are immaterial (Dkt. 47 at p. 4). After a careful review of the
Motion, briefing, and relevant pleadings, the Court is not convinced that BSFI has met its burden
demonstrating that the allegations are “redundant, immaterial, impertinent, or scandalous matter.”
.

FED. R. CIV. P. 12(f). Accordingly, the Court finds the Motion should be denied.
CONCLUSION
It is therefore ORDERED that Counter-Defendant Buttermilk Sky Franchising, Inc.’s
Motion to Strike Pursuant to Rule 12(f) (Dkt. #47) is hereby DENIED.
SIGNED this 27th day of October, 2020.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

3