In Schmalfeldt’s incorrectly titled “PLAINTIFF’S MOTION IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, DEFENDANTS’ MOTION TO STRIKE, DEFENDANTS’ MOTION TO MAKE MORE DEFINITE AND DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED” response, he makes the following argument:
II. There is No Compelling Reason to Strike Any Portion of Plaintiff’s Second Amended Complaint Due to Rule 12(f) of the Federal Rules of Civil Procedure.
Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
(f) MOTION TO STRIKE. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.
Motion to Strike includes this citation:
“‘Immaterial’ matter is that which has no essential or important relationship to the claim for relief, and ‘impertinent’ material consists of statements that do not pertain to, and are not necessary to resolve, the disputed issues.” In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 402 F.Supp.2d 434, 437 (S.D.N.Y. 2005) (citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)). “Scandalous” includes allegations that cast a cruelly derogatory light on a party to other persons. See Skadegaard v. Farrell, 578 F.Supp. 1209, 1221 (D.N.J. 1984). “The granting of a motion to strike scandalous matter is aimed, in part, at avoiding prejudice to a party by preventing a jury from seeing the offensive matter or giving the allegations any other unnecessary notoriety inasmuch as, once filed, pleadings generally are public documents and become generally available.” Wright & Miller 5C Fed. Prac. & Proc. Civ. § 1382 (3d ed. 2011).
Defendants’ position in the motion says quite clearly:
These Defendants would submit that these references to their family relationships have no possible relevance to this litigation and are both immaterial and scandalous.
The rest of paragraphs and words the defendants’ motion wanted stricken had explanations in the memorandum of law provided. Schmalfeldt just didn’t read it.
In other words, the Motion to Strike is to remove words and commentary Schmalfeldt makes that might prejudice a jury with facts unrelated to the actual claims alleged.
Whether someone left their spouse, or the disposition of someone’s children irrespective of the allegations, or said or did something not germane to the complaint is immaterial and scandalous on its face.
And yet, Schmalfeldt in his opposition doubles down by suggesting all these statements are facts and therefore, relevant.
In fact, he tries to argue that Grady said he was bipolar, Hoge’s wife did pass away, Johnson tried to get him kicked out of his apartment in Wisconsin, and Palmer had some marital problems.
None of those statements provide any context to the actual complaint, they are just written to prejudice the reader that the defendants are angry and/or bad people. In reality, they are good people that just don’t like Bill.
Even so, he provides no legal citation to rebut defendants’ strong argument. This is part of Schmalfeldt’s derogatory writing style. And yet..