United States District Court, W.D. North Carolina, Asheville Division
L. Howell, United States Magistrate Judge
the Court is Defendant's Motion to Strike [# 20].
September 21, 2017, Plaintiff filed her Complaint with the
General Court of Justice, Superior Court Division of Guilford
County, North Carolina. [# 1 ¶ 1]. On September 25,
2017, Defendant received a copy of the Complaint and Summons.
[# 1 ¶ 1]. On October 25, 2017, Defendant filed its
Notice of Removal in the Middle District of North Carolina.
[# 1]. On that same date, Defendant filed its Answer [# 9],
Motions to Dismiss [# 4, # 7] and a Motion to Change Venue.
[# 2]. On November 9, 2017, Plaintiff filed a Response
consenting to Defendant's Motion to Change Venue to the
Western District of North Carolina. [# 17]. Defendant did not
file a reply.
8, 2018, District Judge Loretta C. Biggs entered an Order
granting Defendant's Motion to Change Venue. [# 24]. On
that same date, District Judge Martin Reidinger referred the
Motion to Strike to this Court. The Court now evaluates
Defendant's Motion to Strike [# 20].
Fed.R.Civ.P. 12(f), the “Court may strike from a
pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter” either
sua sponte or upon motion. Simaan, Inc. v. BP Products
North American, Inc., 395 F.Supp.2d 271, 278 (M.D. N.C.
2005). In a motion to strike, the burden is high and rests
with the movant. Clark v. Milam, 152 F.R.D. 66, 70
(S.D. W.Va. 1993). Motions to strike are not favored, and any
doubts about whether the motion should be granted should be
resolved in favor of the non-moving party. See Lane v.
Endurance Am. Specialty Ins. Co., No.
3:10-CV-401-MOC-DCK, 2011 WL 1343201, at *2-*3 (W.D. N.C.
April 8, 2011).
describes matter that “has no essential or important
relationship to the claim for relief or the defenses being
pleaded.” 5C Fed. Prac. & Proc. Civ. § 1382
(3d ed.). Impertinent describes matter that “do[es] not
pertain, and [is] not necessary, to the issues in
question.” Id. Scandalous material includes
matter that reflects on a party's moral character or
detracts from the dignity of the court. See Cobell v.
Norton, 224 F.R.D. 1, 5 (D.D.C. 2004).
Materials in Regard to a 12(b)(6) Motion.
has three options regarding the when considering a motion to
strike: (1) a court could allow the materials; (2) a court
could ignore the materials; or (3) a court could strike the
materials outside of the pleadings. If a court allows and
considers materials outside of the pleadings, Fed.R.Civ.P.
12(d) would require a court to convert a 12(b)(6) motion to
dismiss to a motion for summary judgment. The other two
options have the same practical effect of not considering the
outside materials. A court may either ignore the materials or
go an ‘extra step' and strike them at its
discretion. See McBurney v. Cuccinelli, 616 F.3d
393, 410 (4th Cir. 2010) (J., Agee, concurring in part and
dissenting in part); Brown v. Bank of America, 2012
WL 380145 at *6 (D. Md. Feb 3, 2012).
Materials Regarding a 12(b)(1) Motion.
12(b)(1) motion to dismiss addresses whether a court has
subject-matter jurisdiction to hear the dispute. Darling
v. Falls, 236 F.Supp.3d 914, 920 (M.D. N.C. 2017). Where
a defendant alleges jurisdictional claims in the complaint
are faulty, a “court may consider evidence by
affidavit, depositions or live testimony without converting
the proceeding to one for summary judgment.” Adams
v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). A court,
however, may still strike material that is redundant,
immaterial, impertinent, or scandalous.
asks the Court to strike “Exhibit A, together
with all references to Exhibit A, as contained in
Plaintiff's arguments in her [Responses in