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Civil Procedure Fall 2014

Rule 12(f) and Motions to Strike.


In addition to moving to dismiss a claim or seeking a judgment on the pleadings, litigants may move to only strike specific material included in the other party’s pleadings. Under Rule 12(f), however, motions to strike are limited to addressing “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”


Because “the Court must view the pleadings in a light most favorable to the pleading party,” a 12(f) motion to strike will rarely be granted. In re, Inc. Securities Litigation, 114 F.Supp.2d 955, 965 (C.D. Cal. 2000). Denying a motion to strike in In re, Judge Carter described the heavy burden facing the movant:


“Immaterial” means that the matter has no bearing on the controversy before the court. . . . If there is any doubt as to whether the allegations might be an issue in the action, courts will deny the motion. . . . “Impertinent” has been defined as allegations that are not responsive or irrelevant to the issues that arise in the action and which are inadmissible as evidence.


Id. (emphasis added).


The difficulty in demonstrating that language in a pleading is “scandalous” and must be stricken is similarly great. In Skadegaard v. Farrell, 578 F.Supp. 1209 (D.N.J. 1984), the plaintiff stated that her supervisors participated in a retaliatory conspiracy after she rejected one supervisor’s sexual advances. Id. at 1211. In Paragraph 55 of her complaint, plaintiff wrote that two of the defendants “attempted to suborn perjury from witnesses . . . done in furtherance of defendants' conspiracy.” Id. at 1221. Judge Ackerman then discussed and denied defendants’ motion to strike that language:


Defendant argues that paragraph 55 is scandalous in that it “improperly and excessively impugn[s] his moral character” without factual basis. Scandalous pleading for purposes of Rule 12(f) must “reflect cruelly” upon the defendant's moral character, use “repulsive language” or “detract from the dignity of the court.” . . . I do not believe that paragraph 55 should be stricken under this standard. To be scandalous such “degrading charges [must] be irrelevant, or, if relevant, [must be] gone into in unnecessary detail . . . .” . . . I find paragraph 55 to be neither unnecessarily derogatory nor irrelevant to charges alleged by plaintiff in this action.


Id. While Rule 12(f) motions remain available, litigants must recognize the difficulties inherent in demonstrating that language in a pleading has absolutely “no bearing” on the case, or relies on “repulsive language.” Such motions remain disfavored.