Defending against or attacking with a motion to strike

What if there was a tool to get rid of an opponents arguments, claims, or defenses that you don't like? Did you know it can be done in specific circumstances, and it probably should be done in specific circumstances?

Federal Rule of Civil Procedure 12(f) provides that the court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Ewing v. Freedom Forever, LLC, 23-CV-1240 JLS (AHG), 20 (S.D. Cal. Jan. 19, 2024). Pleadings are traditionally the complaint, Answer, Counterclaim, and Answer to a Counterclaim, but a motion to strike can be used beyond pleadings. A motion to strike can and maybe should also be used to remove improper evidence or claims that contradict Admissions or Stipulations. In Barton v. Delfgauw, 3:21-cv-05610-JRC, 4 (W.D. Wash. Feb. 7, 2023), the plaintiff successfully struck an improper allegation, affirmative defense, and evidence in a defendants' motion for summary judgement:

In responses to defendants' motions, plaintiff moved to strike portions of defendants' motions . . . The Court grants plaintiff's motions as to allegations that he opted in via renttoownhomefinder.com . . . Plaintiff provides an admission from defendants that plaintiff only opted in from educationschoolmatching.com . . . There is no evidence that defendants ever amended their answer . . . The Court grants plaintiff's motion regarding defendants' affirmative defense of a failure to mitigate damages . . . There is no need for a plaintiff to mitigate damages in a TCPA case . . . The Court also grants plaintiff's motion to strike Exhibit G . . . Whether plaintiff bought new or used cell phones is not relevant to this action.

In the ninth circuit, rulings on motions to strike are heavily influenced by Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 976 (9th Cir. 2010). It says a court should not resolve disputed and substantial factual or legal issues, instead the proper purpose of a Rule 12(f) motion is to avoid spending time and money litigating spurious issues, King v. City of Portland, 3:22-cv-00801-AR, 8-9 (D. Or. Jan. 30, 2025), insufficient defenses, or any redundant, immaterial, impertinent, or scandalous matter.

Rule 12(f) provides that a “court may strike from a pleading . . . any . . . immaterial, impertinent, or scandalous matter.” FED. R. CIV. P. 12(f). A matter is “immaterial” if it “has no essential or important relationship to the claim for relief or the defenses being plead.” Petrie v. Elec. Game Card, Inc., 761 F.3d 959, 967 (9th Cir. 2014) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994)). “Impertinent material,” on the other hand, “consists of statements that do not pertain, and are not necessary, to the issues in question.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010) (quoting Fantasy, Inc., 984 F.2d at 1527). Further, a matter is “scandalous” if “it generally refers to any allegation that unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court.” Ogdon v. Grand Canyon Univ. Inc., No. 2:22-cv-00477, 2023 WL 5046242, at *1 (D. Ariz. Aug. 8, 2023) (quoting Jud. Watch, Inc. v. U.S. Dep't of Com., 224 F.R.D. 261, 263 (D.D.C. 2004)). Miles v. Clackamas Cnty., 3:23-cv-01805-SB, 40 (D. Or. Jan. 27, 2025).

Generally courts are reluctant to strike matters, so even though the rule says insufficient defenses, redundant material, immaterial content, impertinent material, or scandalous allegations can be struck, usually the moving party must have more:

“Where the moving party cannot adequately demonstrate such prejudice, courts frequently deny motions to strike ‘even though the offending matter literally [was] within one or more of the categories set forth in Rule 12(f).” Promedev, LLC v. Wilson, No. C22-1063JLR, 18 (W.D. Wash. Mar. 2, 2023)

Although I have seen courts be more flexible with striking scandalous material:

An allegation is scandalous if it “unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court.” Collura v. City of Philadelphia, No. 2:12-CV-4398, 2012 WL 6645532, at *7 (E.D. Pa. Dec. 21, 2012) (internal quotation marks omitted) (quoting Pigford v. Veneman, 215 F.R.D. 2, 4 (D.D.C. 2003)). For instance, courts have struck allegations that levy insults at parties or attorneys, id. at *7-8, or that raise prior instances of alleged misconduct “for no other reason than to cast [a party] in a negative light,” Tuck v. Guardian Prot. Servs., Inc., No. 15-CV-1376 JLS (JLB), 2017 WL 1047122, at *2 (S.D. Cal. Mar. 20, 2017). The Court agrees with Defendant that many of Plaintiff's allegations contain immaterial and/or scandalous attacks. First, the FAC makes multiple allegations related to fraud committed by Freedom Forever and/or its manager. See FAC [first amended complaint] (accusing Defendant of selling “scams”) and Exhibit A (purporting to provide proof of Freedom Forever's manager's alleged securities fraud). As Plaintiff's FAC contains no allegations suggesting that he has been a victim of fraud, the Court concludes that Plaintiff has included these allegations solely to cast Freedom Forever and its employees in a negative light. See Tuck, 2017 WL 1047122, at *2. The Court thus STRIKES as scandalous all mentions of fraud or scams from Paragraphs 4, 6, and 10 of the FAC. The Court also STRIKES Exhibit A in its entirety.

So what does this all mean? Motions to strike are surgical tools, not blunt objects. They should be used to remove insufficient defenses, redundant material, immaterial content, impertinent material, or scandalous allegations that are no longer supported by the pleadings or are precluded by a request for admission or stipulation.

“A strike motion “will usually be denied unless the allegations in the pleading have no possible relation to the controversy, and may cause prejudice to one of the parties.”” David v. Herc Rentals Inc., 24-cv-175-BJR, 7 (W.D. Wash. May. 10, 2024)

I don't use them unless I am confident I have the "something more" on my side, but I do use them when it is appropriate. Killing a spurious allegation or improper evidence can greatly simplify a case.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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