United States District Court, D. Nebraska
M. BAZIS UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendant Jared Kelm's
(“Kelm”) Motion to Strike (Filing No. 11), as
well as Defendant Union Tank Car Company's (“Union
Tank”) Motion to Strike and Notice of Joinder in
Kelm's Motion to Strike (Filing No. 13.) For the reasons
explained below, the motions will be granted, in part.
Complaint alleges negligence arising out of a motor vehicle
accident. (Filing No. 1.) The Complaint contains the
9. That, at the time of the collision, Defendant Jared M.
Kelm was impaired according to the laws of the State of
Nebraska, specifically Neb. Rev. Stat. § 60-6, 196, by
operating a motor vehicle with a blood alcohol concentration
of over .08 of one gram by weight of alcohol per two hundred
ten liters of his breath.
10. That on June 19, 2014, the Defendant Jared M. Kelm pled
guilty to operating the motor vehicle owned by Defendant
Union Tank Car Company with a blood alcohol concentration of
over .08 of one gram by weight of alcohol per two hundred ten
liters of his breath at the time of the collision with the
Plaintiff's vehicle. The Defendant's plea of guilty
resulted in Jared M. Kelm being convicted of a violation of
Neb. Rev. Stat. § 60-6, 196.
request that the Court strike Paragraphs 9 and 10 of the
Complaint pursuant to Federal Rule of Civil Procedure 12(f).
Rule 12(f) provides a mechanism for the Court to
“strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). A court possesses liberal
discretion when ruling on motions to strike under Rule 12(f).
BJC Health Systems v. Columbia Casualty Co, 478 F.3d
908, 917 (8th Cir. 2007). “However, courts
view motions to strike with disfavor because striking is an
extreme measure and the motion may only serve to delay
proceedings.” Super 8 Worldwide, Inc. v. Riro,
Inc., No. 8:11CV319, 2011 WL 5827801, *2 (D. Neb. Nov.
18, 2011). “[E]ven matters that are not strictly
relevant to the principal claim at issue should not
necessarily be stricken, if they provide important context
and background to claims asserted or are relevant to some
object of the pleader's suit.” Holt v. Quality
Egg, L.L.C., 777 F.Supp.2d 1160, 1168 (N.D. Iowa 2011)
(internal quotation omitted). Generally, “[t]o prevail
on a motion to strike text from the complaint, the movant
must clearly show that the challenged matter has no bearing
on the subject matter of the litigation and that its
inclusion will prejudice the movant.” Super 8
Worldwide, 2011 WL 5827801 at *2 (quotation and citation
argue that the above-referenced paragraphs should be stricken
because they cite and refer to Kelm's conviction under
Neb. Rev. Stat. § 60-6, 196 of the Nebraska Rules of the
Road, which makes it unlawful for any person to operate a
motor vehicle while under the influence of alcohol. Neb. Rev.
Stat. § 60-6, 196. A violation of this statute
constitutes a Class W misdemeanor under Nebraska law. Neb.
Rev. Stat. § 60-6, 197.03.
Revised Statute § 60-693 provides: “No evidence of
the conviction of any person for any violation of any
provision of the Nebraska Rules of the Road shall be
admissible in any court in any civil action.” Neb. Rev.
Stat. § 60-693. Defendants contend that Plaintiff's
references to Kelm's plea and conviction amount to an
attack on Kelm's moral character and suggest that because
he pled guilty, he must be negligent as alleged in this case.
argues, however, that although Nebraska law limits the
admission of evidence of violations of the Nebraska Rules of
the Road, it nevertheless allows for the admission of
evidence of a driver's intoxication in order to prove
negligence. Fortin v. Hike, 205 Neb. 344, 287 N.W.2d
681 (1980). Plaintiff maintains that Paragraphs 9 and 10
describe the level of Kelm's intoxication and form the
basis of his ultimate claim of negligence. Plaintiff asserts
that these allegations place Defendants on notice that he
will be introducing evidence of Kelm's intoxication and
Kelm's admission to being intoxicated at the time of the
Court agrees with Defendants that the Complaint's mention
of Kelm's guilty plea and conviction is unduly
prejudicial. Therefore, the Court will strike Paragraph 10 of
the Complaint and direct Plaintiff to file an amended
complaint, which omits any reference to Kelm's plea and
conviction. Paragraph 9, which describes the alleged level of
Kelm's intoxication, will not be stricken.
IT IS ORDERED:
1. Defendant Jared Kelm's Motion to Strike (Filing No.
11) and Defendant Union Tank Car Company's Motion to
Strike (Filing No. 13) are ...