The opinion
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANTHONY TRAYLOR, : Civil No. 1:20-CV-674
:
Plaintiff : (Chief Judge Jones)
:
v. : (Magistrate Judge Carlson)
:
RYAN MCCARTHY, :
:
Defendant :
MEMORANDUM ORDER
I. Statement of Facts and of the Case.
This case is an employment discrimination action bought against the
Secretary of the Army. (Doc. 1). The defendant has filed a motion to dismiss, or in
the alternative, for summary judgment. (Doc. 16). The plaintiff, in turn, has moved
to strike this potentially dispositive motion, citing certain alleged technical flaws in
this motion under our local rules, (Doc. 19), although this motion to strike, which is
unaccompanied by any brief, is also technically flawed under our local rules. The
defendant has responded to this motion to strike. Therefore, the motion is ripe for
resolution. For the reasons set forth below, we will deny this motion.
II. Discussion
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, ... ‘[mJotions 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 § 12.37[1] (3d ed. 2000).” Stanbury Law Firm v. LR.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, where, as in this case, a party files a motion to strike but neglects to
file a brief in support of that motion one other consideration guides the exercise of
our discretion. The failure to file a brief has consequences for the plaintiff since we
are entitled to deem the plaintiff to have withdrawn a motion when he fails to
properly support that motion by filing a brief in a timely fashion. See, e.g., Salkeld v.
Tennis, 248 F. App'x 341 (3d Cir.2007) (affirming dismissal of motion under Local
Rule 7.5); Booze v. Wetzel, 1:12-CV-1307, 2012 WL 6137561 (M.D. Pa. Nov. 16,
2012) report and recommendation adopted, 1:CV-12-1307, 2012 WL 6138315
(M.D. Pa. Dec. 11, 2012); Breslin v. Dickinson Twp., 1:09 CV 1396, 2011 WL
1577840 (M.D.Pa. Apr.26, 2011) Prinkey v. Tennis, No. 09 52, 2010 WL 4683757
(M.D.Pa. Nov.10, 2010) (dismissal under Local Rule 7.5); Griffin v. Lackawanna
County Prison Board, No. 07 1683, 2008 WL 4533685 (M.D.Pa.Oct.6, 2008)
(dismissal under Local Rule 7.6).
In this case, in the exercise of our discretion, we will deny this motion to
strike. Recognizing that “[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), we find that it has not been shown that the defense motion
to dismiss or in the alternative for summary judgment is both “redundant,
immaterial, impertinent, or scandalous” and unfairly prejudicial. Ruby v. Davis
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Foods, Inc., 269 F.3d 818, 820 (7th Cir. 2001). Quite the contrary, the motion raises
threshold legal defenses which can, and should, be considered on their merits by this
court. 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 and will
address the merits of the pending motion to dismiss or in the alternative for summary
judgment by a separate Report and Recommendation.
So ordered this 30th day of December 2020.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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