United States District Court, W.D. North Carolina, Charlotte Division
CARLA WALLACE THOMAS VAN WINGERDEN MICHAEL WALLACE LINDSEY VAN WINGERDEN, Plaintiffs,
LEGENDS HOSPITALITY, LLC PAVILION PARTNERS LIVE NATION WORLDWIDE, INC. LIVE NATION ENTERTAINMENT, INC., Defendants.
COGBURN JR., UNITED STATES DISTRICT JUDGE.
MATTER is before the court on the Motion to Strike
(#8) proffered by defendants Live Nation Worldwide and Live
Nation Entertainment (collectively “Live
Nation”). Having considered the motion and reviewed the
pleadings, the court enters the following Order.
Motion asks the court to strike the following paragraph from
plaintiffs' Complaint (#1):
Live Nation touts itself as the “Global Leader for Live
Entertainment, ” boasts having 530 million fans across
37 countries, and reported revenue for [Live Nation
Entertainment] of $7.2 billion in 2015 alone.
(#1) at ¶ 17. Live Nation contends that the allegations
made in this paragraph are not only irrelevant, but they are
also highly prejudicial. (#9) at 4-5. Further, Live Nation
argues that any probative value of this allegation is
outweighed by its unfair prejudice. (#9) at 3.
12(f) governs a motion to strike the pleadings in full or in
part. Rule 12(f) provides that the court “may
strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” (emphasis added). The use of “may”
indicates that the court has substantial discretion in its
decision whether to grant such a motion.
12(f) Motions are viewed with “disfavor” as the
striking of a pleading is “a drastic remedy.”
Waste Management Holdings v. Gilmore, 252 F.3d 316,
347 (4th Cir. 2001). A motion to strike places a
“sizable burden on the movant, and would typically
require a showing that denial of the motion would prejudice
the movant.” Miller v. Rutherford Cty.,
No.1:08CV441, 2008 WL 5392057, at *4 (W.D. N.C. Dec. 19,
2008) (internal citation and quotations omitted).
alia, Live Nation contends that this information will
have prejudicial impact, including a newspaper article in its
filings that refers to the paragraph in question. (#9) at 5
and (#9-1). The court cannot so find.
information contained within paragraph 17, as quoted above,
is generally available on Live Nation's website. For
example, one publically-available article “Live Nation
Entertainment Reports Fourth Quarter and Full Year 2015
Results, ” notes that Live Nation reported revenue of
$7.2 billion in 2015. See
the home page of Live Nation Entertainment notes prominently
the phrase “We are the Global Leader for Live
Entertainment, ” next to the phrases “550 million
fans” and “40 countries.” The court
includes here a picture of these claims on Live Nation's
home page (http://www.livenationentertainment.com/)
as of the date of this Order.
Nation claims that its own prominently displayed,
publically-available information about its company is
prejudicial to itself in the present action. The court cannot
so find. There is some prejudice that naturally occurs when a
defendant is sued, especially if there is publicity around
Nation compares the potential prejudice it will suffer to
that of a mugshot. (#14) at 4. In E.E.O.C. v. Bo-Cherry,
Inc., this court struck the inclusion of a mugshot to
prove that a plaintiff in a civil rights suit trimmed and
neatly maintained his beard. No. 3:13-CV-00210-MOC, 2013 WL
2317724, at *2 (W.D. N.C. May 28, 2013). Plaintiff in that
suit was arguing that he was fired for his religious belief,
specifically wearing a beard under the tenants of Islam. This
court in that case agreed that “any reference to the
Complainant's alleged criminal record is immaterial,
impertinent, and scandalous as it would unduly prejudice
plaintiff in pursuing the serious civil rights issues raised
in this case.” Id
is highly distinguishable. In that case, a mugshot in an
unrelated criminal matter in a pleading in a civil rights
suit. Here, a sophisticated corporate defendant alleges that
its publically-available earnings and descriptive information
is somehow prejudicial in a negligence suit. Any prejudice to
these corporate defendants from the information in paragraph
17 is minimal, and further minimized as the information is
available on its own website, including ...