Having spilled much ink on the heralded 2015 amendments to the discovery provisions of the Federal Rules of Civil Procedure, I have decided to switch gears dramatically and discuss a rule that has not been amended since 1946, Rule 12(f). Rule 12(f) provides in relevant part that on motion or sua sponte, “[t]he court may strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.”
If Lexis annotations are a guide, relatively few litigants file Rule 12(f) motions on those grounds—and with good reason. As U.S. District Judge Ellen Hollander (D. Md.) observed in her recent opinion in Blevins v. Piatt, citing to Fourth Circuit precedent, “‘Rule 12(f) motions are generally viewed with disfavor because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic.’”
Judge Hollander’s opinion is noteworthy for its clear delineation and application, in a carefully constructed, compact decision, of the criteria for granting or denying such a motion. In Blevins, she did both. If you are contemplating a Rule 12(f) motion—or must defend against one—it would be well to review her opinion closely.
The defendant hit the plaintiffs’ truck. The plaintiffs sued. The defendant moved to strike certain allegations in the complaint as “immaterial, impertinent and scandalous,” to wit:
- The insurance carrier declared the truck a total loss.
- The plaintiffs were wearing seat belts.
- The defendant was charged, inter alia, with possession of drug paraphernalia and marijuana.
- He was found guilty of possession and failure to obey a traffic signal, while the remaining charges were “stetted.”
- He was negligent in driving under the influence and in possessing drug paraphernalia and marijuana.
Judge Hollander first reviewed the applicable standards for evaluating a Rule 12(f) motion: (1) The court has wide discretion; (2) the pleading must be viewed in the light most favorable to the pleader; (3) this motion is generally disfavored and will be denied unless the challenged language bears no possible relation to the controversy and could cause prejudice; (4) these standards are relaxed when the allegations are truly scandalous; and (5) where the relevance of allegations turns on disputed issues, it would be premature to strike them from a complaint.
The court then applied these standards. The defendant argued that the “total loss” allegation was irrelevant and prejudicial, because (a) property damage had been settled, and (b) under Maryland law, an insurance settlement may not be construed as an admission of liability. The plaintiffs countered that the evidence of physical damage was relevant to the force of impact. Judge Hollander agreed that the force of impact was relevant but noted that the carrier’s declaration of “total loss” was an economic decision with no bearing on the force of impact and was thus irrelevant. She granted the motion as to the allegation of “total loss.”
Judge Hollander denied the motion as to the “seat belt” reference, however, on the ground that it was neither scandalous nor prejudicial. Maryland law precludes a contributorily negligent plaintiff from recovering damages; the allegation simply anticipated the defense of contributory negligence.
The defendant argued that the criminal conviction should be stricken because Maryland law precluded its use as substantive proof in a civil action arising from the offense for which he was convicted (although it did constitute a “judicial admission”). He also argued that the facts did not support the allegation that he was stoned or drunk; he was not charged with those offenses. Judge Hollander, however, found no impropriety in these allegations, notwithstanding that they may have contained “some factual details beyond those necessary to meet the pleading standards of Fed. R. Civ. P. 8(a).” Over-pleading is not grounds to grant a motion to strike. Moreover, the defendant did not explain how he would be prejudiced by having to answer the allegations. Presumably, he would deny them, and it would then become a matter of discovery and proof at trial. Facts are not rendered admissible at trial merely because they have been alleged in a complaint.
It is always a pleasure to read a tightly reasoned, efficiently written opinion with authoritative citations that summarizes a specific point of procedural law, obscure though it may be. Keep the citation to Blevins handy. You never know when you may need it.
Charles S. Fax is an associate editor for Litigation News.