United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
has filed a Statement of Objections (Filing No. 43)
to portions of a Memorandum and Order entered by Magistrate
Judge Cheryl R. Zwart on May 30, 2017 (Filing No.
41). After careful review conducted pursuant to 28
U.S.C. § 636(b)(1)(A), Fed.R.Civ.P. 72(a), and
NECivR 72.2, I find that the challenged parts of the
order are not clearly erroneous or contrary to law.
Specifically, it was not clearly erroneous for the Magistrate
Judge to (1) decline to dismiss defendant Chad Hein's
state-law tort counterclaims on a Fed.R.Civ.P. 12(f) motion
to strike; and (2) deny defendant Amy Lesan's motion to
strike Plaintiff's jury demand without-instead of
face of Plaintiff's jurisdictional and
statute-of-limitations challenges to defendant Hein's
state-law tort counterclaims (Filing No. 22 at
CM/ECF p. 7) against Plaintiff, Magistrate Judge Zwart
declined to “dismiss Defendant Hein's entire
Counterclaim on a 12(f) motion to strike. Plaintiff's
jurisdiction and statute of limitations arguments should be
addressed, if appropriate, in a motion to dismiss under Rule
12(b)(6) or a motion for summary judgment under Rule
56.” (Filing No. 41 at CM/ECF p. 6.)
Rule of Civil Procedure 12(f) allows the court to
“strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” Striking a pleading is an “extreme
measure” that is “viewed with disfavor and
infrequently granted.” Stanbury Law Firm v.
I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000) (citing
Lunsford v. United States, 570 F.2d 221, 229 (8th
request under Rule 12(f) that this court decline to exercise
its supplemental jurisdiction over the defendant's state
counterclaims does not fall within the scope of Rule
12(f)-that is, Plaintiff does not argue that the
counterclaims constitute “an insufficient
defense” or material that is “redundant,
immaterial, impertinent, or scandalous.” Fed.R.Civ.P.
Plaintiff's Objection to the Magistrate Judge's Order
does not mention how this court's refusal to decide on a
Fed.R.Civ.P. 12(f) motion to strike whether it will
eventually exercise supplemental jurisdiction over state
counterclaims will prejudice him. Vernor's Ginger Ale
Bottling Corp. v. Hires-Ideal Bottling Co., 8 F.R.D.
240, 242 (D. Neb. 1948) (“[A]lthough a pleading be
redundant, immaterial, impertinent, and literally susceptible
to a motion to strike under the provisions of Rule 12(f),
such motion will not be granted in the absence of some
showing of prejudicial harm resulting to the
adversary.”); Joe Hand Promotions, Inc. v.
Ridgway, No. 6:14-CV-03401, 2015 WL 1321477, at *1 (W.D.
Mo. Mar. 24, 2015) (“Even when striking a defense is
technically proper, courts are reluctant to do so in the
absence of prejudice to the moving party.”); see also
Illinois Tool Works Inc v. ESAB Group, Inc., 2016 WL
8224331, *1-*2 (E.D. Wis. 2016) (“[T]his court does not
propose to entertain disfavored motions to strike merely to
embark on the largely academic exercise of editing a
defendants' [sic] pleadings. Instead, a party moving to
strike must identify some actual prejudice it could expect to
sustain as a result of the offending pleading. That has not
been established here.”).
it was not clearly erroneous for the Magistrate Judge to
decline to dismiss defendant Hein's state-law tort
counterclaims on a Fed.R.Civ.P. 12(f) motion to strike.
objects to the portion of Magistrate Judge Zwart's Order
denying defendant Lesan's motion to strike
Plaintiff's jury demand on his § 1983 claims
“without prejudice to reconsideration if facts are
presented showing Lesan was acting within the scope of her
employment [under the Nebraska Political Subdivisions Tort
Claims Act] when the alleged acts occurred.” (Filing
No. 41 at CM/ECF p. 11.) Plaintiff complains that in this
§ 1983 action, the Nebraska Political Subdivisions Tort
Claims Act (“PSTCA”)-which in the state courts
would not entitle Plaintiff to a jury-is not at issue because
Plaintiff has not asserted any state-court tort claims.
Therefore, Plaintiff argues, defendant Lesan's motion to
strike the jury demand should have been denied with, rather
than without, prejudice.
agree with Plaintiff that he has a Seventh Amendment right to
a jury trial in a § 1983 case regardless of whether the
defendants were acting within or without the scope of their
employment (assuming they were acting under color of state
law, which is a different principle), Judge Zwart's alleged
error, if it was error, is harmless.
IT IS ORDERED:
Plaintiff's Statement of Objections (Filing No. 43) is
Magistrate Judge's Order entered on May 30, 2017 (Filing
No. 41), is ...