United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER POSTPONING RULE 26(f) CONFERENCE
AND ORDERING THE PARTIES TO MEET AND CONFER AND
H. CLELAND UNITED STATES DISTRICT JUDGE
before the court is Defendant's “Motion to Strike
All Class Allegations in Plaintiff's Complaint.”
(Dkt. #8.) Defendant moves under Federal Rules of Civil
Procedure 12(f), 23(c)(1)(A), and 23(d)(1)(D) for an order
striking Plaintiff's class allegations. Plaintiff's
response to the motion is not yet due. (See Dkt.
#12.) In light of the pending motion-and of the impact that
the court's decision will have on the timing and scope of
discovery in this case-the court cancelled the scheduling
conference previously set for July 10, 2018. It will postpone
the scheduling conference until resolution of the motion to
strike. The court, however, strongly encourages the parties
to conduct discovery by agreement on Plaintiff's
individual claims unrelated to the class.
court has reviewed Defendant's motion to strike and will
also order the parties to confer as to whether the motion is
properly presented under Rule 12(f).
12(f) permits a court to “strike from a pleading . . .
any redundant, immaterial, impertinent, or scandalous
matter.” The court has considerable discretion in
deciding whether to strike under Rule 12(f). Delta
Consulting Grp., Inc. v. R. Randle Constr., Inc., 554
F.3d 1133, 1141 (7th Cir. 2009). The court may strike
allegations as “scandalous, ” for example, where
they “bear no possible relation to the controversy or
may cause the objecting party prejudice.” Talbot v.
Robert Matthews Dist. Co., 961 F.2d 654, 664 (7th Cir.
Rule of Civil Procedure 12(c), on the other hand, provides
that “[a]fter the pleadings are closed-but early enough
not to delay trial-a party may move for judgment on the
pleadings.” A court reviewing a motion for judgment on
the pleadings assumes that all well-pleaded factual
allegations of the nonmoving party are true; but the court
need not accept as true “legal conclusions or
unwarranted factual inferences.” Jackson v.
Prof'l Radiology Inc., 864 F.3d 463, 466 (6th Cir.
2017) (internal quotation omitted). Judgment on the pleadings
is awarded “only if the moving party is . . . clearly
entitled to judgment.” Id. (quoting S.
Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 479 F.2d 478, 480 (6th Cir. 1973)).
court is uncertain how class allegations would qualify as
“redundant, immaterial, impertinent, or scandalous
matter” such that they could be stricken under Rule
12(f). And nothing in Defendant's motion indicates why
Rule 12(f)-as opposed to some other mechanism-is the
appropriate vehicle by which this court should strike
Plaintiff's class allegations. Indeed, Defendant's
motion relies heavily on this court's opinion in
Green v. Liberty Ins. Corp., No. 15-10434, 2016 WL
1259110, at *1 (E.D. Mich. Mar. 30, 2016) (Cleland, J.)-an
order that was made on a Rule 12(c) motion for judgment on
the pleadings, not a Rule 12(f) motion to strike.
than order further briefing or risk a dispute amongst the
parties as to Rule 12(f)'s suitability for this motion,
the court will order the parties to meet and confer on the
issue. Accordingly, IT IS ORDERED that the scheduling
conference in this matter will be POSTPONED until the court
has decided Defendants motion to strike (Dkt. #8). This order
in no way prejudices the parties' ability to conduct
discovery by agreement as to Plaintiffs individual
FURTHER ORDERED that counsel meet and confer in good faith no
later than July 16, 2018 regarding the
issues described herein. Counsel is further ORDERED to file a
joint report no later than July 17, 2018
explaining their joint view for how the motion to strike
should be handled going forward. The court envisions a few
forms that joint report might take:
. A stipulation that the court should
analyze Defendants motion to strike under Federal Rule of
Civil Procedure 12(c), but that Defendant does not need to
refresh its papers;
. A stipulation that the motion should be
analyzed under Rule 12(c), and Defendant will withdraw its
motion without prejudice, refresh and refile it;
. A statement that Defendant remains
persuaded that Rule 12(f) is the correct standard and setting
a response deadline for Plaintiff; or
. Some other alternative stipulation.
hereby certify that a copy of the foregoing document was
mailed to counsel of record on this date, July 12, 2018, ...