SunSouth Bank v. NashYork, LLC et al, No. 1:2012cv00918 - Document 36 (M.D. Ala. 2013)

Court Description: OPINION AND ORDER that dfts 24 MOTION to Strike and plf's 33 MOTION to Strike are denied, as further set out in the order. Signed by Honorable Judge Myron H. Thompson on 2/11/2013. (wcl, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION SUNSOUTH BANK, Plaintiff, v. NASHYORK, LLC; et al., Defendants. ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 1:12cv918-MHT (WO) OPINION AND ORDER It is ORDERED that defendants NashYork, LLC, Dwight P. Wiles, James C. Stroud, Herbert L. Graham, and Elliot Levine s motion to strike factual statements in plaintiff s brief (Doc. No. 24) and plaintiff SunSouth Bank s motion to strike affidavits (Doc. No. 33) are denied under the conditions set forth below. *** The Federal Rules of Civil Procedure delineate the general use of a motion to strike: The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Fed. R. Civ. P. 12(f) (emphasis added). The terms of the rule make clear that [o]nly material included in a pleading may be subject of a motion to strike.... or memoranda, objections, or Motions, briefs affidavits attacked by the motion to strike. may not be 2 James Wm. Moore, et al., Moore's Federal Practice ยง 12.37[2] (3d ed. 1999). Therefore, as an initial matter, both the plaintiff s and the defendants motions to strike must be denied as to all non-pleadings, and, in this case, that would be all documents at issue. See Jeter v. Montgomery County, 480 F. Supp. 2d 1293, 1295-96 (M.D. Ala. 2007) (Thompson, J.); Fed. R. Civ. P. 7(a) (a pleading is (1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer. ). This strike. court often addresses improper motions to However, in a puzzling twist, the defendants 2 here opted to submit to the court such a defective strike motion despite defective. knowing that it was procedurally See Defs. Mot. to Strike (Doc. No. 24) at 2 ( In Jeter, the Court held that a motion to strike was appropriate only for a pleading and not for [m]otions, briefs (citing or 480 memoranda, F. Supp. objections, at or 1296). affidavits. ) Apparently, the defendants, citing Jeter s explanation of proper usages for motions to strike, took that explanation as an invitation to submit knowingly an improper strike motion in contravention of the Federal Rules of Civil Procedure. The court now iterates what it has stated on numerous occasions and should already be clear. Motions to strike should be used only to ask the court to strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Civ. P. 12(f) (emphasis added). Fed. R. Motions to strike should not be used to ask the court to disregard unsupported factual statements contained in an opponent s brief. 3 The proper forum for those sorts of arguments is an ordinary responsive brief. In this case, the defendants submitted such a reply brief while electing to omit from it any arguments being about their unsupported, opponent s instead factual erroneously contentions in the strike motion. allegations putting those See Defs. Reply Br. (Doc. No. 25). Likewise, the plaintiff s motion to strike false affidavits and response to defendants motion to strike is flawed. It simultaneously seeks to strike affidavits submitted by the defendants in connection with their motion to dismiss or transfer and responds to arguments made in the defendants motion to strike. For the reasons already explained, these are not proper usages of a strike motion. The court is capable of sifting evidence, as required by motions to dismiss or transfer, without resort to an exclusionary process, and the court will not allow the 4 motion-to-dismiss-or-transfer proceedings to degenerate into a battle of motions to strike. DONE, this the 11th day of February, 2013. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

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