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.