United States District Court, N.D. Mississippi, Aberdeen Division
ORDER DENYING MOTION TO STRIKE AND GRANTING MOTION
FOR LEAVE TO AMEND
A. SANDERS UNITED STATES MAGISTRATE JUDGE.
Britt has sued Mississippi Farm Bureau Casualty Insurance
Company and Southern Farm Bureau Life Insurance Company
asserting Title VII claims for sex discrimination and
retaliation, a state law McArn claim relating to the
sale of life insurance, and alternatively a claim against
these defendants alleging the breach of the obligation of
good faith and fair dealing. These defendants have both filed
motions to dismiss under Rule 12(b)(6) asserting that the
plaintiff has failed to state a claim against them. The
plaintiff admittedly did not name Southern Farm Bureau as her
employer in her EEOC complaint and that defendant also seeks
dismissal for the failure to exhaust administrative remedies.
of her response to the motion to dismiss, the plaintiff has
filed a motion for leave to file her second amended
complaint. These two defendants oppose the grant of leave to
amend, arguing that the proposed amended complaint is still
subject to dismissal and therefore futile. The plaintiff
filed her reply in support of her motion to amend and
Mississippi Farm Bureau moved to strike three portions of
that reply. Because of its potential impact on the decision
on the underlying motion to amend, the court first addresses
the motion to strike.
Farm Bureau seeks to have the court strike three matters from
the plaintiff's reply:
1. The plaintiff's response to its futility argument
regarding the plaintiff's McArn claim, asserting
that it is not licensed to sell life insurance in Mississippi
and therefore can have no liability on this claim because it
relates to the sale of life insurance.
2. Any reference to Barry Patton being an employee of
Mississippi Farm Bureau, asserting that he is actually
employed by a non-party, Southern Farm Bureau Casualty.
3. The third footnote in the plaintiff's reply which
asserts there is a “revealing typographical
error” in the defendant's brief.
variety of reasons, the court finds that the motion should be
12(f) provides: “The court may strike from pleading
… any redundant, immaterial, impertinent, or
scandalous matter.” Fed.R.Civ.P. 12(f). This defendant
claims certain factual matters asserted by the plaintiff are
known by her or should be known by her to be false. Pleadings
are limited to the complaint, an answer to a complaint, an
answer to a counterclaim or crossclaim, a third-party to a
complaint; and if allowed by the court a reply to an answer.
Fed.R.Civ.P. 7(a). The plaintiff's reply in support of
the motion to amend is not a pleading within the definition
of Rule 7. Rule 12(f) therefore does not apply to the reply.
U.S. v. Coney, 689 F.3d 365, 380 (5th
motions to strike are not favored --they constitute a drastic
remedy and are difficult to decide on a limited record.
Conn v U.S., 823 F.Supp.2d 441, 443-44 (S.D.Miss.
2011); U.S. ex rel. King v. Solvay, S.A., 304 F.R.D.
507 (S.D.Tex. 2015). Additionally, the defendant is
attempting to impose some type of summary fact finding
procedure as a prerequisite to granting to the motion to
amend. Any attempt to attack the plaintiff's complaint
based on an assertion that it includes erroneous or false
factual allegations would be through summary judgment, not by
means of a motion to strike. Hagy v. Am. Honda Motor
Co., 125 F.Supp.2d 456 (W. D. Okla. 2000).
Farm Bureau suggests that the court can resolve its motion to
strike by taking judicial notice of its licensing with the
State of Mississippi, in connection with the plaintiff's
McArn claim. It also suggests that the court take
judicial notice that Barry Patton is not an employee of
Mississippi Farm Bureau based on his representation in
filings in this action that he is employed by Southern Farm
Bureau Casualty, who is not a party to this action. To the
extent that judicial notice may be appropriate to the motion
to dismiss, the request should be addressed to the district
judge in connection with that motion.
Farm Bureau has taken umbrage at comments about a
“revealing typographic” error in the
defendant's briefing. Even if this document were a
pleading, pleadings are not scandalous merely because they
may offend the sensibilities of a party or their counsel, if
relevant to the issue in controversy and ...