United States District Court, D. New Mexico
ORDER DENYING DEFENDANT'S MOTION TO STRIKE
H. RITTER U.S. MAGISTRATE JUDGE
matter is before the Court upon Kenneth Jehle's
Motion to Strike  filed June 25, 2018. (The
parties have the same last name and for clarity will be
referred to by their first names hereafter.) Chloe filed a
response  with errata  on July 5, 2018. Kenneth filed a
reply  on July 23, 2018, completing the briefing.
filed a Complaint for Intentional Infliction of Emotional
Distress [1-1] on May 4, 2018, in New Mexico's
Second Judicial District Court. Kenneth removed the case to
federal court  on June 25, 2018.
complaint [1-1, *2-5] alleges that her father Kenneth
“sexually exploited [her] when she was a child”
and “[b]y means of coercion, … unlawfully
possessed and/or distributed video of [her] engaged in sexual
intercourse.” Id., *5, ¶¶ 53-54.
Chloe alleges that Kenneth caused her extreme and severe
mental distress and did so “intentionally or in
reckless disregard for [her] mental health”.
Id., ¶¶ 57-58.
asserts that many of the statements in the complaint should
be stricken as false, immaterial, scandalous, or prejudicial,
under the authority of Fed.R.Civ.P. 12(f). Chloe concedes
that the described events are “scandalous” but
denies that they should be stricken from the complaint.
OF CONSULTATION REQUIREMENT
initial matter, Chloe asserts that Kenneth failed to follow
local rules of procedure when he filed his motion without
first consulting with Chloe (through counsel), and that the
motion should be denied on that basis. The Court declines to
deny the motion on those grounds.
U.S. District of New Mexico, a “[m]ovant must determine
whether a motion is opposed, and a motion that omits
recitation of a good-faith request for concurrence may be
summarily denied." D.N.M.LR-Civ. 7.1(a). The rule
encourages parties to narrow or even resolve issues without
court intervention when possible. By its terms, the rule is
of the motion to strike at this time, when all briefing has
been done and clearly the parties have broad disagreement
about the merits of the motion, would serve little purpose
but to delay a ruling on legitimate issues. Therefore, the
Court will exercise its discretion to resolve the motion on
its merits instead.
TO STRIKE UNDER RULE 12(f)
12(f) of the Federal Rules of Civil Procedure says that
"[t]he court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter." A party may file a motion to strike
or the court may act on its own. Id. Whether to
grant a motion to strike is a matter of judicial
discretion. See Nielsen v. Moroni Feed Co., 162 F.3d
604, 606 n. 3 (10th Cir.1998).
consensus of federal caselaw is that motions to strike are
not favored and "should be denied unless the challenged
allegations have no possible relation or logical connection
to the subject matter of the controversy". 5C C. Wright
& A. Miller, Fed. Prac. & Proc. Civ., §
1382 (3d. ed.2004) (footnotes omitted); see, e.g., Payne
v. Tri-State Careflight, LLC, 327 F.R.D. 433, 445
(D.N.M. 2018). The party filing a motion to strike has a
"formidable" burden to show the violative nature of
the material. See Siegel v. HSBC Holdings, plc, 283
F.Supp.3d 722, 739 (N.D. Ill. 2017) (burden on movant);
Gates v. District of Columbia, 66 F.Supp.3d 1, 27
(D.D.C. 2014) ("formidable" burden). Some federal
courts require an additional showing of prejudice, but
authority from the U.S. District of New Mexico does not.
See Lane v. Page, 272 F.R.D. 581, 598-600 (D.N.M.
FALSE OR ...